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Title: Criminal Psychology: A Manual for Judges, Practitioners, and
Students

Author: Hans Gross

Author of introduction, etc.: Joseph Jastrow

Translator: Horace Meyer Kallen

Release date: May 1, 1998 [eBook #1320]
Most recently updated: October 29, 2024

Language: English

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*** START OF THE PROJECT GUTENBERG EBOOK CRIMINAL
PSYCHOLOGY: A MANUAL FOR JUDGES, PRACTITIONERS, AND

STUDENTS ***

Every attempt has been made to replicate the
original as printed.
Some typographical errors have been
corrected; a list follows the text. German and
French spellings have not been altered from the
original.
Contents.
Index: A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R,
S, T, U, V, W, Z
Footnotes
(etext transcriber's note)

CRIMINAL PSYCHOLOGY

MODERN CRIMINAL SCIENCE SERIES
Published under the auspices of the American Institute of Criminal Law and Criminology
1. Modern Theories of Criminality. By C. Bernaldo de Quirós, of Madrid. Translated from the
Second Spanish edition, by Dr. Alfonso de Salvio, Assistant Professor of Romance Languages in
Northwestern University. With an American Preface by the Author, and an Introduction by W. W.
Smithers, of the Philadelphia Bar.
2. Criminal Psychology. By Hans Gross, Professor of Criminal Law in the University of Graz,
Austria, Editor of the Archives of Criminal Anthropology and Criminalistics, etc. Translated from the
Fourth German edition, by Dr. Horace M. Kallen, Professor of Philosophy in Wisconsin University.
With an American Preface by the Author, and an Introduction by Joseph Jastrow, Professor of
Psychology in the University of Wisconsin.
3. Crime, Its Causes and Remedies. By Cesare Lombroso, late Professor of Psychiatry and
Legal Medicine in the University of Turin, author of the “Criminal Man,” Founder and Editor of the
“Archives of Psychiatry and Penal Sciences.” Translated from the French and German editions by
Rev. Henry P. Horton, M.A., of Ithaca, N. Y. With an Introduction by Maurice Parmelee, Associate
Professor of Sociology in the University of Missouri.
4. The Individualization of Punishment. By Raymond Saleilles, Professor of Comparative
Law in the University of Paris. Translated from the Second French edition, by Mrs. Rachael Szold
Jastrow, of Madison, Wis. With an Introduction by Roscoe Pound, Professor of Law in Harvard
University.
5. Penal Philosophy. By Gabriel Tarde, Late Magistrate in Picardy, Professor of Modern
Philosophy in the College of France, and Lecturer in the Paris School of Political Science. Translated
from the Fourth French edition by Rapelje Howell, of the New York Bar. With an Editorial Preface
by Edward Lindsey, of the Warren, Pa., Bar, and an Introduction by Robert H. Gault, Assistant
Professor of Psychology in Northwestern University.

6. Crime and Its Repression. By Gustav Aschaffenburg, Professor of Psychiatry in the
Academy of Practical Medicine at Cologne, Editor of the “Monthly Journal of Criminal Psychology
and Criminal Law Reform.” Translated from the Second German edition by Adalbert Albrecht.
With an Editorial Preface by Maurice Parmelee, Associate Professor of Sociology in the University
of Missouri, and an Introduction by Arthur C. Train, formerly Assistant District Attorney for New
York County.
7. Criminology. By Raffaele Garofalo, late President of the Court of Appeals of Naples.
Translated from the First Italian and the Fifth French edition, by Robert W. Millar, Esq., of
Chicago, Professor in Northwestern University Law School. With an Introduction by E. Ray Stevens,
Judge of the Circuit Court, Madison, Wis.
8. Criminality and Economic Conditions. By W. A. Bonger, Doctor in Law of the University
of Amsterdam. Translated from the French by Henry P. Horton, M.A., of Ithaca, N. Y. With an
American Preface by the Author, and an Editorial Preface by Edward Lindsey, of the Warren, Pa.,
Bar, and an Introduction by Frank H. Norcross, Justice of the Supreme Court of Nevada.
9. Criminal Sociology. By Enrico Ferri, of the Roman Bar, and Professor of Criminal Law and
Procedure in the University of Rome, Editor of the “Archives of Psychiatry and Penal Sciences,” the
“Positivist School in Penal Theory and Practice,” etc. Translated from the Fourth Italian and Second
French edition, by Joseph I. Kelly, late Lecturer on Roman Law in Northwestern University, and
Dean of the Faculty of Law in the University of Louisiana, and John Lisle, late of the Philadelphia
Bar. With an American Preface by the Author, an Editorial Preface by William W. Smithers, of the
Philadelphia Bar, and Introductions by Charles A. Ellwood, Professor of Sociology in the
University of Missouri, and Quincy A. Myers, formerly Chief Justice of the Supreme Court of
Indiana.

THE MODERN CRIMINAL SCIENCE SERIES

Published under the Auspices of

THE AMERICAN INSTITUTE OF CRIMINAL LAW AND
CRIMINOLOGY

Criminal Psychology
A MANUAL FOR
JUDGES, PRACTITIONERS, AND STUDENTS

By HANS GROSS, J.U.D.

Professor of Criminal Law at the University of
Graz, Austria. Formerly Magistrate of the

Criminal Court at Czernovitz, Austria

Translated from the Fourth German Edition
By HORACE M. KALLEN, Ph. D.

Assistant and Lecturer in Philosophy in Harvard University

WITH AN INTRODUCTION BY JOSEPH JASTROW, PH.D.
Professor of Psychology in the University of Wisconsin

BOSTON
LITTLE, BROWN, AND COMPANY
1918

Copyright, 1911,
By Little, Brown, and Company.
All rights reserved

GENERAL INTRODUCTION TO THE MODERN
CRIMINAL SCIENCE SERIES.
AT the National Conference of Criminal Law and Criminology, held in
Chicago, at Northwestern University, in June, 1909, the American Institute
of Criminal Law and Criminology was organized; and, as a part of its work,
the following resolution was passed:
“Whereas, it is exceedingly desirable that important treatises on
criminology in foreign languages be made readily accessible in the English
language, Resolved, that the president appoint a committee of five with
power to select such treatises as in their judgment should be translated, and
to arrange for their publication.”
The Committee appointed under this Resolution has made careful
investigation of the literature of the subject, and has consulted by frequent
correspondence. It has selected several works from among the mass of
material. It has arranged with publisher, with authors, and with translators,
for the immediate undertaking and rapid progress of the task. It realizes the
necessity of educating the professions and the public by the wide diffusion
of information on this subject. It desires here to explain the considerations
which have moved it in seeking to select the treatises best adapted to the
purpose.
For the community at large, it is important to recognize that criminal
science is a larger thing than criminal law. The legal profession in particular
has a duty to familiarize itself with the principles of that science, as the sole
means for intelligent and systematic improvement of the criminal law.
Two centuries ago, while modern medical science was still young,
medical practitioners proceeded upon two general assumptions: one as to
the cause of disease, the other as to its treatment. As to the cause of disease,
—disease was sent by the inscrutable will of God. No man could fathom
that will, nor its arbitrary operation. As to the treatment of disease, there
were believed to be a few remedial agents of universal efficacy. Calomel
and bloodletting, for example, were two of the principal ones. A larger or
smaller dose of calomel, a greater or less quantity of bloodletting,—this
blindly indiscriminate mode of treatment was regarded as orthodox for all

common varieties of ailment. And so his calomel pill and his bloodletting
lancet were carried everywhere with him by the doctor.
Nowadays, all this is past, in medical science. As to the causes of
disease, we know that they are facts of nature,—various, but distinguishable
by diagnosis and research, and more or less capable of prevention or control
or counter-action. As to the treatment, we now know that there are various
specific modes of treatment for specific causes or symptoms, and that the
treatment must be adapted to the cause. In short, the individualization of
disease, in cause and in treatment, is the dominant truth of modern medical
science.
The same truth is now known about crime; but the understanding and the
application of it are just opening upon us. The old and still dominant
thought is, as to cause, that a crime is caused by the inscrutable moral free
will of the human being, doing or not doing the crime, just as it pleases;
absolutely free in advance, at any moment of time, to choose or not to
choose the criminal act, and therefore in itself the sole and ultimate cause of
crime. As to treatment, there still are just two traditional measures, used in
varying doses for all kinds of crime and all kinds of persons,—jail, or a fine
(for death is now employed in rare cases only). But modern science, here as
in medicine, recognizes that crime also (like disease) has natural causes. It
need not be asserted for one moment that crime is a disease. But it does
have natural causes,—that is, circumstances which work to produce it in a
given case. And as to treatment, modern science recognizes that penal or
remedial treatment cannot possibly be indiscriminate and machine-like, but
must be adapted to the causes, and to the man as affected by those causes.
Common sense and logic alike require, inevitably, that the moment we
predicate a specific cause for an undesirable effect, the remedial treatment
must be specifically adapted to that cause.
Thus the great truth of the present and the future, for criminal science, is
the individualization of penal treatment,—for that man, and for the cause of
that man’s crime.
Now this truth opens up a vast field for re-examination. It means that we
must study all the possible data that can be causes of crime,—the man’s
heredity, the man’s physical and moral make-up, his emotional
temperament, the surroundings of his youth, his present home, and other
conditions,—all the influencing circumstances. And it means that the effect

of different methods of treatment, old or new, for different kinds of men and
of causes, must be studied, experimented, and compared. Only in this way
can accurate knowledge be reached, and new efficient measures be adopted.
All this has been going on in Europe for forty years past, and in limited
fields in this country. All the branches of science that can help have been
working,—anthropology, medicine, psychology, economics, sociology,
philanthropy, penology. The law alone has abstained. The science of law is
the one to be served by all this. But the public in general and the legal
profession in particular have remained either ignorant of the entire subject
or indifferent to the entire scientific movement. And this ignorance or
indifference has blocked the way to progress in administration.
The Institute therefore takes upon itself, as one of its aims, to inculcate
the study of modern criminal science, as a pressing duty for the legal
profession and for the thoughtful community at large. One of its principal
modes of stimulating and aiding this study is to make available in the
English language the most useful treatises now extant in the Continental
languages. Our country has started late. There is much to catch up with, in
the results reached elsewhere. We shall, to be sure, profit by the long period
of argument and theorizing and experimentation which European thinkers
and workers have passed through. But to reap that profit, the results of their
experience must be made accessible in the English language.
The effort, in selecting this series of translations, has been to choose
those works which best represent the various schools of thought in criminal
science, the general results reached, the points of contact or of controversy,
and the contrasts of method—having always in view that class of works
which have a more than local value and could best be serviceable to
criminal science in our country. As the science has various aspects and
emphases—the anthropological, psychological, sociological, legal,
statistical, economic, pathological—due regard was paid, in the selection, to
a representation of all these aspects. And as the several Continental
countries have contributed in different ways to these various aspects,—
France, Germany, Italy, most abundantly, but the others each its share,—the
effort was made also to recognize the different contributions as far as
feasible.
The selection made by the Committee, then, represents its judgment of
the works that are most useful and most instructive for the purpose of

translation. It is its conviction that this Series, when completed, will furnish
the American student of criminal science a systematic and sufficient
acquaintance with the controlling doctrines and methods that now hold the
stage of thought in Continental Europe. Which of the various principles and
methods will prove best adapted to help our problems can only be told after
our students and workers have tested them in our own experience. But it is
certain that we must first acquaint ourselves with these results of a
generation of European thought.
In closing, the Committee thinks it desirable to refer the members of the
Institute, for purposes of further investigation of the literature, to the
“Preliminary Bibliography of Modern Criminal Law and Criminology”
(Bulletin No. 1 of the Gary Library of Law of Northwestern University),
already issued to members of the Conference. The Committee believes that
some of the Anglo-American works listed therein will be found useful.
Committee on Translations.
Chairman, Wm. W. Smithers,
Secretary of the Comparative Law Bureau of the American Bar Association,
Philadelphia, Pa.
Ernst Freund,
Professor of Law in the University of Chicago.
Maurice Parmelee,
Professor of Sociology in the State University of Kansas.
Roscoe Pound,
Professor of Law in the University of Chicago.
Robert B. Scott,
Professor of Political Science in the State University of isconsin.
John H. Wigmore,
Professor of Law in Northwestern University, Chicago.

INTRODUCTION TO THE ENGLISH VERSION.
WHAT Professor Gross presents in this volume is nothing less than an
applied psychology of the judicial processes,—a critical survey of the
procedures incident to the administration of justice with due recognition of
their intrinsically psychological character, and yet with the insight conferred
by a responsible experience with a working system. There is nothing more
significant in the history of institutions than their tendency to get in the way
of the very purposes which they were devised to meet. The adoration of
measures seems to be an ineradicable human trait. Prophets and reformers
ever insist upon the values of ideals and ends—the spiritual meanings of
things—while the people as naturally drift to the worship of cults and
ceremonies, and thus secure the more superficial while losing the deeper
satisfactions of a duty performed. So restraining is the formal rigidity of
primitive cultures that the mind of man hardly moves within their enforced
orbits. In complex societies the conservatism, which is at once profitably
conservative and needlessly obstructing, assumes a more intricate, a more
evasive, and a more engaging form. In an age for which machinery has
accomplished such heroic service, the dependence upon mechanical devices
acquires quite unprecedented dimensions. It is compatible with, if not
provocative of, a mental indolence,—an attention to details sufficient to
operate the machinery, but a disinclination to think about the principles of
the ends of its operation. There is no set of human relations that exhibits
more distinctively the issues of these undesirable tendencies than those
which the process of law adjusts. We have lost utterly the older sense of a
hallowed fealty towards man-made law; we are not suffering from the
inflexibility of the Medes and the Persians. We manufacture laws as readily
as we do steam-rollers and change their patterns to suit the roads we have to
build. But with the profit of our adaptability we are in danger of losing the
underlying sense of purpose that inspires and continues to justify measures,
and to lose also a certain intimate intercourse with problems of theory and
philosophy which is one of the requisites of a professional equipment and
one nowhere better appreciated than in countries loyal to Teutonic ideals of
culture. The present volume bears the promise of performing a notable
service for English readers by rendering accessible an admirable review of

the data and principles germane to the practices of justice as related to their
intimate conditioning in the psychological traits of men.
The significant fact in regard to the procedures of justice is that they are
of men, by men, and for men. Any attempt to eliminate unduly the human
element, or to esteem a system apart from its adaptation to the psychology
of human traits as they serve the ends of justice, is likely to result in a
machine-made justice and a mechanical administration. As a means of
furthering the plasticity of the law, of infusing it with a large human vitality
—a movement of large scope in which religion and ethics, economics and
sociology are worthily cooperating—the psychology of the party of the first
part and the party of the second part may well be considered. The
psychology of the judge enters into the consideration as influentially as the
psychology of the offender. The many-sidedness of the problems thus
unified in a common application is worthy of emphasis. There is the
problem of evidence: the ability of a witness to observe and recount an
incident, and the distortions to which such report is liable through errors of
sense, confusion of inference with observation, weakness of judgment,
prepossession, emotional interest, excitement, or an abnormal mental
condition. It is the author’s view that the judge should understand these
relations not merely in their narrower practical bearings, but in their larger
and more theoretical aspects which the study of psychology as a
comprehensive science sets forth. There is the allied problem of testimony
and belief, which concerns the peculiarly judicial qualities. To ease the step
from ideas to their expression, to estimate motive and intention, to know
and appraise at their proper value the logical weaknesses and personal
foibles of all kinds and conditions of offenders and witnesses,—to do this in
accord with high standards, requires that men as well as evidence shall be
judged. Allied to this problem which appeals to a large range of
psychological doctrine, there is yet another which appeals to a yet larger and
more intricate range,—that of human character and condition. Crimes are
such complex issues as to demand the systematic diagnosis of the criminal.
Heredity and environment, associations and standards, initiative and
suggestibility, may all be condoning as well as aggravating factors of what
becomes a “case.” The peculiar temptations of distinctive periods of life, the
perplexing intrusion of subtle abnormalities, particularly when of a sexual
type, have brought it about that the psychologist has extended his laboratory
procedures to include the study of such deviation; and thus a common set of

findings have an equally pertinent though a different interest for the
theoretical student of relations and the practitioner. There are, as well,
certain special psychological conditions that may color and quite transform
the interpretation of a situation or a bit of testimony. To distinguish between
hysterical deception and lying, between a superstitious believer in the reality
of an experience and the victim of an actual hallucination, to detect whether
a condition of emotional excitement or despair is a cause or an effect, is no
less a psychological problem than the more popularly discussed question of
compelling confession of guilt by the analysis of laboratory reactions. It
may well be that judges and lawyers and men of science will continue to
differ in their estimate of the aid which may come to the practical pursuits
from a knowledge of the relations as the psychologist presents them in a
non-technical, but yet systematic analysis. Professor Gross believes
thoroughly in its importance; and those who read his book will arrive at a
clearer view of the methods and issues that give character to this notable
chapter in applied psychology.
The author of the volume is a distinguished representative of the modern
scientific study of criminology, or “criminalistic” as he prefers to call it. He
was born December 26th, 1847, in Graz (Steiermark), Austria, pursued his
university studies at Vienna and Graz, and qualified for the law in 1869. He
served as “Untersuchungsrichter” (examining magistrate) and in other
capacities, and received his first academic appointment as professor of
criminal law at the University of Czernowitz. He was later attached to the
German University at Prague, and is now professor in the University of
Graz. He is the author of a considerable range of volumes bearing on the
administration of criminal law and upon the theoretical foundations of the
science of criminology. In 1893 he issued his “Handbuch für
Untersuchungsrichter, als System der Kriminalistik,” a work that reached its
fifth edition in 1908, and has been translated into eight foreign languages.
From 1898 on he has been the editor of the “Archiv für
Kriminalanthropologie und Kriminalistik,” of which about twenty volumes
have appeared. He is a frequent contributor to this journal, which is an
admirable representative of an efficient technical aid to the dissemination of
interest in an important and difficult field. It is also worthy of mention that
at the University of Graz he has established a Museum of Criminology, and
that his son, Otto Gross, is well known as a specialist in nervous and mental
disorders and as a contributor to the psychological aspects of his specialty.

The volume here presented was issued in 1897; the translation is from the
second and enlarged edition of 1905. The volume may be accepted as an
authoritative exposition of a leader in his “Fach,” and is the more acceptable
for purposes of translation, in that the wide interests of the writer and his
sympathetic handling of his material impart an unusually readable quality to
his pages.
Joseph Jastrow.
Madison, Wisconsin,
December, 1910.

AUTHOR’S PREFACE TO THE AMERICAN EDITION.
THE present work was the first really objective Criminal Psychology
which dealt with the mental states of judges, experts, jury, witnesses, etc., as
well as with the mental states of criminals. And a study of the former is just
as needful as a study of the latter. The need has fortunately since been
recognized and several studies of special topics treated in this book—e.g.
depositions of witnesses, perception, the pathoformic lie, superstition,
probability, sensory illusions, inference, sexual differences, etc.—have
become the subjects of a considerable literature, referred to in our second
edition.
I agreed with much pleasure to the proposition of the American Institute
of Criminal Law and Criminology to have the book translated. I am proud
of the opportunity to address Americans and Englishmen in their language.
We of the German countries recognize the intellectual achievements of
America and are well aware how much Americans can teach us.
I can only hope that the translation will justify itself by its usefulness to
the legal profession.
Hans Gross.

TRANSLATOR’S NOTE.
THE present version of Gross’s Kriminal Psychologie differs from the
original in the fact that many references not of general psychological or
criminological interest or not readily accessible to English readers have
been eliminated, and in some instances more accessible ones have been
inserted. Prof. Gross’s erudition is so stupendous that it reaches far out into
texts where no ordinary reader would be able or willing to follow him, and
the book suffers no loss from the excision. In other places it was necessary
to omit or to condense passages. Wherever this is done attention is called to
it in the notes. The chief omission is a portion of the section on dialects.
Otherwise the translation is practically literal. Additional bibliography of
psychological and criminological works likely to be generally helpful has
been appended.

CONTENTS.
PAGE
General Introduction to the Modern Criminal Science Series v
Introduction to the English Version ix
Author’s Preface to the American Edition xiii
Translator’s Note xiv
Introduction 1
PART I. THE SUBJECTIVE CONDITIONS OF EVIDENCE (THE MENTAL ACTIVITIES
OF THE JUDGE) 7
Title A. Conditions of Taking Evidence 7
Topic 1. METHOD 7
§ 1 (a) General Considerations 7
§ 2 (b) The Method of Natural Science 9
Topic 2. PSYCHOLOGIC LESSONS 14
§ 3 (a) General Considerations 14
§ 4 (b) Integrity of Witnesses 16
§ 5 (c) Correctness of Testimony 18
§ 6 (d) Presuppositions of Evidence-Taking 20
§ 7 (e) Egoism 25
§ 8 (f) Secrets 28
§ 9 (g) Interest 37
Topic 3. PHENOMENOLOGY: The Outward Expression of Mental States 41
§ 10 41
§ 11 (a) General External Conditions 42
§ 12 (b) General Signs of Character 53
§ 13 (c) Particular Character-signs 61
(d) Somatic Character-Units 69
§ 14 (1) General Considerations 69
§ 15 (2) Causes of Irritation 71
§ 16 (3) Cruelty 76
§ 17 (4) Nostalgia 77
§ 18 (5) Reflex Movements 78
§ 19 (6) Dress 82
§ 20 (7) Physiognomy and Related Subjects 83
§ 21 (8) The Hand 100
Title B. The Conditions for Defining Theories 105
Topic 1. THE MAKING OF INFERENCES 105
§ 22 105
§ 23 (a) Proof 106
§ 24 (b) Causation 117
§ 25 (c) Scepticism 129
§ 26 (d) The Empirical Method in the Study of Cases 136

§ 27 (e) Analogy 144
§ 28 (f) Probability 147
§ 29 (g) Chance 159
§ 30 (h) Persuasion and Explanation 161
§ 31 (i) Inference and Judgment 165
§ 32 (j) Mistaken Inferences 176
§ 33 (k) Statistics of the Moral Situation 179
Topic 2. KNOWLEDGE 183
§ 34 183
PART II. OBJECTIVE CONDITIONS OF CRIMINAL INVESTIGATION (THE MENTAL
ACTIVITY OF THE EXAMINEE) 187
Title A. General Conditions 187
Topic 1. OF SENSE PERCEPTION 187
§ 35 187
§ 36 (a) General Considerations 187
(b) The Sense of Sight 196
§ 37 (1) General Considerations 196
§ 38 (2) Color-vision 204
§ 39 (3) The Blind Spot 207
§ 40 (c) The Sense of Hearing 208
§ 41 (d) The Sense of Taste 212
§ 42 (e) The Sense of Smell 213
§ 43 (f) The Sense of Touch 215
Topic 2. PERCEPTION AND CONCEPTION 221
§ 44 221
Topic 3. IMAGINATION 232
§ 45 232
Topic 4. INTELLECTUAL PROCESSES 238
§ 46 (a) General Considerations 238
§ 47 (b) The Mechanism of Thinking 243
§ 48 (c) The Subconscious 245
§ 49 (d) Subjective Conditions 248
Topic 5. THE ASSOCIATION OF IDEAS 254
§ 50 254
Topic 6. RECOLLECTION AND MEMORY 258
§ 51 258
§ 52 (a) The Essence of Memory 259
§ 53 (b) The Forms of Reproduction 263
§ 54 (c) The Peculiarities of Reproduction 268
§ 55 (d) Illusions of Memory 275
§ 56 (e) Mnemotechnique 279
Topic 7. THE WILL 281
§ 57 281
Topic 8. EMOTION 283
§ 58 283

Topic 9. THE FORMS OF GIVING TESTIMONY 287
§ 59 287
§ 60 (a) General Study of Variety in Forms of Expression 288
§ 61 (b) Dialect Forms 293
§ 62 (c) Incorrect Forms 296
Title B. Differentiating Conditions of Giving Testimony 300
Topic 1. GENERAL DIFFERENCES 300
(a) Woman 300
§ 63 1. General Considerations 300
§ 64 2. Difference between Man and Women 307
3. Sexual Peculiarities 311
§ 65 (a) General 311
§ 66 (b) Menstruation 311
§ 67 (c) Pregnancy 317
§ 68 (d) Erotic 319
§ 69 (e) Submerged Sexual Factors 322
4. Particular Feminine Qualities 332
§ 70 (a) Intelligence 332
§ 71 1. Conception 333
§ 72 2. Judgment 335
§ 73 3. Quarrels with Women 337
§ 74 (b) Honesty 340
§ 75 (c) Love, Hate and Friendship 350
§ 76 (d) Emotional Disposition and Related Subjects 359
§ 77 (e) Weakness 361
§ 78 (b) Children 364
§ 79 1. General Considerations 364
§ 80 2. Children as Witnesses 365
§ 81 3. Juvenile Delinquency 369
§ 82 (c) Senility 372
§ 83 (d) Differences in Conception 375
§ 84 (e) Nature and Nurture 384
§ 85 1. The Influence of Nurture 385
§ 86 2. The Views of the Uneducated 388
§ 87 3. Onesided Education 391
§ 88 4. Inclination 393
§ 89 5. Other Differences 395
§ 90 6. Intelligence and Stupidity 398
Topic 2. ISOLATED INFLUENCES 406
§ 91 (a) Habit 406
§ 92 (b) Heredity 410
§ 93 (c) Prepossession 412
§ 94 (d) Imitation and the Crowd 415
§ 95 (e) Passion and Emotion 416
§ 96 (f) Honor 421

§ 97 (g) Superstition 422
Topic 3. MISTAKES 422
(a) Mistakes of the Senses 422
§ 98 (1) General Considerations 422
§ 99 (2) Optical Illusions 427
§ 100 (3) Auditory Illusions 443
§ 101 (4) Illusions of Touch 449
§ 102 (5) Illusions of the Sense of Taste 452
§ 103 (6) The Illusions of the Olfactory Sense 453
§ 104 (b) Hallucinations and Illusions 454
§ 105 (c) Imaginative Ideas 459
(d) Misunderstandings 467
§ 106 1. Verbal Misunderstandings 467
§ 107 2. Other Misunderstandings 470
(e) The Lie 474
§ 108 1. General Considerations 474
§ 109 2. The Pathoformic Lie 479
Topic 4. ISOLATED SPECIAL CONDITIONS 480
§ 110 (a) Sleep and Dream 480
§ 111 (b) Intoxication 484
§ 112 (c) Suggestion 491
Appendix A. Bibliography, including texts more easily within reach of English readers 493
Appendix B. Works on Psychology of General Interest 500
Index: A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, Z 503

CRIMINAL PSYCHOLOGY.

INTRODUCTION.
OF all disciplines necessary to the criminal justice in addition to the
knowledge of law, the most important are those derived from psychology.
For such sciences teach him to know the type of man it is his business to
deal with. Now psychological sciences appear in various forms. There is a
native psychology, a keenness of vision given in the march of experience, to
a few fortunate persons, who see rightly without having learned the laws
which determine the course of events, or without being even conscious of
them. Of this native psychological power many men show traces, but very
few indeed are possessed of as much as criminalists intrinsically require.
In the colleges and pre-professional schools we jurists may acquire a
little scientific psychology as a “philosophical propaedeutic,” but we all
know how insufficient it is and how little of it endures in the business of
life. And we had rather not reckon up the number of criminalists who,
seeing this insufficiency, pursue serious psychological investigations.
One especial psychological discipline which was apparently created for
our sake is the psychology of law, the development of which, in Germany,
Volkmar[1] recounts. This science afterward developed, through the
instrumentality of Metzger[2] and Plainer,[3] as criminal psychology. From
the medical point of view especially, Choulant’s collection of the latter’s,
“Quaestiones,” is still valuable. Criminal psychology was developed further
by Hoffbauer,[4] Grohmann,[5] Heinroth,[6] Schaumann,[7] Münch,[8]
Eckartshausen,[9] and others. In Kant’s time the subject was a bone of
contention between faculties, Kant representing in the quarrel the
philosophic, Metzger, Hoffbauer, and Fries,[10] the medical faculties. Later
legal psychology was simply absorbed by psychiatry, and thereby
completely subsumed among the medical disciplines, in spite of the fact that
Regnault,[11] still later, attempted to recover it for philosophy, as is pointed
out in Friedreich’s[12] well-known text-book (cf. moreover V. Wilbrand’s[13]
text-book). Nowadays, criminal psychology, as represented by Kraus,[14]
Krafft-Ebing,[15] Maudsley,[16] Holtzendorff,[17] Lombroso,[18] and others
has become a branch of criminal anthropology. It is valued as the doctrine
of motives in crime, or, according to Liszt, as the investigation of the
psychophysical condition of the criminal. It is thus only a part of the subject

indicated by its name.[19] How utterly criminal psychology has become
incorporated in criminal anthropology is demonstrated by the works of
Näcke,[20] Kurella,[21] Bleuler,[22] Dallemagne,[23] Marro,[24] Ellis,[25] Baer,
[26] Koch,[27] Maschka,[28] Thomson,[29] Ferri,[30] Bonfigli,[31] Corre,[32] etc.

Literally, criminal psychology should be that form of psychology used in
dealing with crime; not merely, the psychopathology of criminals, the
natural history of the criminal mind. But taken even literally, this is not all
the psychology required by the criminalist. No doubt crime is an objective
thing. Cain would actually have slaughtered Abel even if at the time Adam
and Eve were already dead. But for us each crime exists only as we perceive
it,—as we learn to know it through all those media established for us in
criminal procedure. But these media are based upon sense-perception, upon
the perception of the judge and his assistants, i.e.: upon witnesses, accused,
and experts. Such perceptions must be psychologically validated. The
knowledge of the principles of this validation demands again a special
department of general psychology—even such a pragmatic applied
psychology as will deal with all states of mind that might possibly be
involved in the determination and judgment of crime. It is the aim of this
book to present such a psychology. “If we were gods,” writes Plato in the
Symposium, “there would be no philosophy”—and if our senses were truer
and our sense keener, we should need no psychology. As it is we must strive
hard to determine certainly how we see and think; we must understand these
processes according to valid laws organized into a system—otherwise we
remain the shuttlecocks of sense, misunderstanding and accident. We must
know how all of us,—we ourselves, witnesses, experts, and accused,
observe and perceive; we must know how they think,—and how they
demonstrate; we must take into account how variously mankind infer and
perceive, what mistakes and illusions may ensue; how people recall and
bear in mind; how everything varies with age, sex, nature, and cultivation.
We must also see clearly what series of influences can prevail to change all
those things which would have been different under normal conditions.
Indeed, the largest place in this book will be given to the witness and the
judge himself, since we want in fact, from the first to keep in mind the
creation of material for our instruction; but the psychology of the criminal
must also receive consideration where-ever the issue is not concerned with
his so-called psychoses, but with the validation of evidence.

Our method will be that fundamental to all psychological investigation,
and may be divided into three parts:[33]
1. The preparation of a review of psychological phenomena.
2. Study of causal relationships.
3. Establishment of the principles of psychic activity.
The subject-matter will be drawn on the one hand, from that already
presented by psychological science, but will be treated throughout from the
point of view of the criminal judge, and prepared for his purposes. On the
other hand, the material will be drawn from these observations that alone
the criminologist at work can make, and on this the principles of psychology
will be brought to bear.
We shall not espouse either pietism, scepticism, or criticism. We have
merely to consider the individual phenomena, as they may concern the
criminalist; to examine them and to establish whatever value the material
may have for him; what portions may be of use to him in the interest of
discovering the truth; and where the dangers may lurk that menace him. And
just as we are aware that the comprehension of the fundamental concepts of
the exact sciences is not to be derived from their methodology, so we must
keep clearly in mind that the truth which we criminalists have to attain can
not be constructed out of the formal correctness of the content presented us.
We are in duty bound to render it materially correct. But that is to be
achieved only if we are acquainted with principles of psychology, and know
how to make them serve our purposes. For our problem, the oft-quoted
epigram of Bailey’s, “The study of physiology is as repugnant to the
psychologist as that of acoustics to the composer,” no longer holds. We are
not poets, we are investigators. If we are to do our work properly, we must
base it completely upon modern psycho physical fundamentals. Whoever
expects unaided to find the right thing at the right moment is in the position
of the individual who didn’t know whether he could play the violin because
he had not yet tried. We must gather wisdom while we are not required to
use it; when the time for use arrives, the time for harvest is over.
Let this be our fundamental principle: That we criminalists receive from
our main source, the witnesses, many more inferences than observations,
and that this fact is the basis of so many mistakes in our work. Again and
again we are taught, in the deposition of evidence, that only facts as plain
sense-perceptions should be presented; that inference is the judge’s affair.

But we only appear to obey this principle; actually, most of what we note as
fact and sense-perception, is nothing but a more or less justified judgment,
which though presented in the honestest belief, still offers no positive truth.
“Amicus Plato, sed magis amica Veritas.”
There is no doubt that there is an increasing, and for us jurists, a not
unimportant demand for the study of psychology in its bearing on our
profession. But it must be served. The spirited Abbé de Baëts, said at a
meeting of criminalists in Brussels, that the present tendency of the science
of criminal law demands the observation of the facts of the daily life. In this
observation consists the alpha and omega of our work; we can perform it
only with the flux of sensory appearances, and the law which determines
this flux, and according to which the appearances come, is the law of
causation. But we are nowhere so neglectful of causation as in the deeds of
mankind. A knowledge of that region only psychology can give us. Hence,
to become conversant with psychological principles, is the obvious duty of
that conscientiousness which must hold first place among the forces that
conserve the state. It is a fact that there has been in this matter much
delinquency and much neglect. If, then, we were compelled to endure some
bitterness on account of it, let it be remembered that it was always directed
upon the fact that we insisted on studying our statutes and their
commentaries, fearfully excluding every other discipline that might have
assisted us, and have imported vitality into our profession. It was Gneist[34]
who complained: “The contemporary low stage of legal education is to be
explained like much else by that historical continuity which plays the
foremost rôle in the administration of justice.” Menger[35] does not mention
“historical continuity” so plainly, but he points sternly enough to the legal
sciences as the most backward of all disciplines that were in contact with
contemporary tendencies. That these accusations are justified we must
admit, when we consider what Stölzel[36] and the genial creator of modern
civil teaching demands: “It must be recognized that jurisprudence in reality
is nothing but the thesis of the healthy human understanding in matters of
law.” But what the “healthy human mind” requires we can no longer
discover from our statutory paragraphs only. How shameful it is for us,
when Goldschmidt[37] openly narrates how a famous scientist exclaimed to
a student in his laboratory: “What do you want here? You know nothing,
you understand nothing, you do nothing,—you had better become a lawyer.”

Now let us for once frankly confess why we are dealt these disgraceful
reproaches. Let us agree that we have not studied or dealt with
jurisprudence as a science, have never envisaged it as an empirical
discipline; that the aprioristic and classical tradition had kept this insight at
a distance, and that where investigation and effort toward the recognition of
the true is lacking, there lacks everything of the least scientific importance.
To be scientifically legitimate, we need first of all the installation of the
disciplines of research which shall have direct relationships with our proper
task. In this way only can we attain that spiritual independence by means of
spiritual freedom, which Goldschmidt defines as the affair of the higher
institutions of learning, and which is also the ideal of our own business in
life. And this task is not too great. “Life is movement,” cried Alois von
Brinz,[38] in his magnificent inaugural address. “Life is not the thought, but
the thinking which comes in the fullness of action.”
It may be announced with joy and satisfaction, that since the publication
of the first edition of this book, and bearing upon it, there came to life a rich
collection of fortuitous works which have brought together valuable
material. Concerning the testimony of witnesses, its nature and value,
concerning memory, and the types of reproduction, there is now a
considerable literature. Everywhere industrious hands are raised,—hands of
psychologists, physicians, and lawyers, to share in the work. Should they go
on unhurt we may perhaps repair the unhappy faults committed by our
ancestors through stupid ignorance and destructive use of uncritically
collected material.

Part I.

THE SUBJECTIVE CONDITIONS OF EVIDENCE: THE
MENTAL ACTIVITIES OF THE JUDGE.
Title A. The Conditions of Taking Evidence.
Topic I. METHOD.
Section 1. (a) General Considerations.

SOCRATES, dealing in the Meno with the teachability of virtue, sends for
one of Meno’s slaves, to prove by him the possibility of absolutely certain a
priori knowledge. The slave is to determine the length of a rectangle, the
contents of which is twice that of one measuring two feet; but he is to have
no previous knowledge of the matter, and is not to be directly coached by
Socrates. He is to discover the answer for himself. Actually the slave first
gives out an incorrect answer. He answers that the length of a rectangle
having twice the area of the one mentioned is four feet, thinking that the
length doubles with the area. Thereupon Socrates triumphantly points out to
Meno that the slave does as a matter of fact not yet quite know the truth
under consideration, but that he really thinks he knows it; and then Socrates,
in his own Socratic way, leads the slave to the correct solution. This very
significant procedure of the philosopher is cited by Guggenheim[39] as an
illustration of the essence of a priori knowledge, and when we properly
consider what we have to do with a witness who has to relate any fact, we
may see in the Socratic method the simplest example of our task. We must
never forget that the majority of mankind dealing with any subject whatever
always believe that they know and repeat the truth, and even when they say
doubtfully: “I believe.—It seems to me,” there is, in this tentativeness, more
meant than meets the ear. When anybody says: “I believe that—” it merely
means that he intends to insure himself against the event of being
contradicted by better informed persons; but he certainly has not the doubt
his expression indicates. When, however, the report of some bare fact is in
question (“It rained,” “It was 9 o’clock,” “His beard was brown,” or “It was
8 o’clock,”) it does not matter to the narrator, and if he imparts such facts

with the introduction, “I believe,” then he was really uncertain. The matter
becomes important only where the issue involves partly-concealed
observations, conclusions and judgments. In such cases another factor enters
—conceit; what the witness asserts he is fairly certain of just because he
asserts it, and all the “I believes,” “Perhapses,” and “It seemeds,” are merely
insurance against all accidents.
Generally statements are made without such reservations and, even if the
matter is not long certain, with full assurance. What thus holds of the daily
life, holds also, and more intensely, of court-witnesses, particularly in
crucial matters. Anybody experienced in their conduct comes to be
absolutely convinced that witnesses do not know what they know. A series
of assertions are made with utter certainty. Yet when these are successively
subjected to closer examinations, tested for their ground and source, only a
very small portion can be retained unaltered. Of course, one may here
overshoot the mark. It often happens, even in the routine of daily life, that a
man may be made to feel shaky in his most absolute convictions, by means
of an energetic attack and searching questions. Conscientious and sanguine
people are particularly easy subjects of such doubts. Somebody narrates an
event; questioning begins as to the indubitability of the fact, as to the
exclusion of possible deception; the narrator becomes uncertain, he recalls
that, because of a lively imagination, he has already believed himself to
have seen things otherwise than they actually were, and finally he admits
that the matter might probably have been different. During trials this is still
more frequent. The circumstance of being in court of itself excites most
people; the consciousness that one’s statement is, or may be, of great
significance increases the excitement; and the authoritative character of the
official subdues very many people to conform their opinions to his. What
wonder then, that however much a man may be convinced of the correctness
of his evidence, he may yet fail in the face of the doubting judge to know
anything certainly?
Now one of the most difficult tasks of the criminalist is to hit, in just
such cases, upon the truth; neither to accept the testimony blindly and
uncritically; nor to render the witness, who otherwise is telling the truth,
vacillating and doubtful. But it is still more difficult to lead the witness, who
is not intentionally falsifying, but has merely observed incorrectly or has
made false conclusions, to a statement of the truth as Socrates leads the
slave in the Meno. It is as modern as it is comfortable to assert that this is

not the judge’s business—that the witness is to depose, his evidence is to be
accepted, and the judge is to judge. Yet it is supposed before everything else
that the duty of the court is to establish the material truth—that the formal
truth is insufficient. Moreover, if we notice false observations and let them
by, then, under certain circumstance, we are minus one important piece of
evidence pro and con, and the whole case may be turned topsy turvy. At the
very least a basis of development in the presentation of evidence is so
excluded. We shall, then, proceed in the Socratic fashion. But, inasmuch as
we are not concerned with mathematics, and are hence more badly placed in
the matter of proof, we shall have to proceed more cautiously and with less
certainty, than when the question is merely one of the area of a square. On
the one hand we know only in the rarest cases that we are not ourselves
mistaken, so that we must not, without anything further, lead another to
agree with us; on the other hand we must beware of perverting the witness
from his possibly sound opinions. It is not desirable to speak of suggestion
in this matter, since, if I believe that the other fellow knows a matter better
than I and conform to his opinion, there is as yet no suggestion. And this
pure form of change of opinion and of openness to conviction is commonest
among us. Whoever is able to correct the witness’s apparently false
conceptions and to lead him to discover his error of his own accord and then
to speak the truth—whoever can do this and yet does not go too far,
deducing from the facts nothing that does not actually follow from—that
man is a master among us.
Section 2. (b) The Method of Natural Science.[40]

If now we ask how we are to plan our work, what method we are to
follow, we must agree that to establish scientifically the principles of our
discipline alone is not sufficient. If we are to make progress, the daily
routine also must be scientifically administered. Every sentence, every
investigation, every official act must satisfy the same demand as that made
of the entire juristic science. In this way only can we rise above the mere
workaday world of manual labor, with its sense-dulling disgust, its
vexatious monotony, and its frightful menace against law and justice. While
jurists merely studied the language of dead laws, expounding them with
effort unceasing, and, one may complain, propounding more, we must have
despaired of ever being scientific. And this because law as a science
painfully sought justification in deduction from long obsolete norms and in

the explanation of texts. To jurisprudence was left only the empty shell, and
a man like Ihering[41] spoke of a “circus for dialectico-acrobatic tricks.”
Yet the scientific quality is right to hand. We need only to take hold of
the method, that for nearly a century has shown itself to us the most helpful.
Since Warnkönig (1819)[42] told us, “Jurisprudence must become a natural
science,” men have rung changes upon this battle cry (cf. Spitzer[43]). And
even if, because misunderstood, it led in some directions wrongly, it does
seem as if a genuinely scientific direction might be given to our doctrines
and their application. We know very well that we may not hurry. Wherever
people delayed in establishing the right thing and then suddenly tried for it,
they went in their haste too far. This is apparent not only in the situations of
life; it is visible, in the very recent hasty conclusions of the Lombrosists, in
their very good, but inadequate observations, and unjustified and strained
inferences. We are not to figure the scientific method from these.[44] It is for
us to gather facts and to study them. The drawing of inferences we may
leave to our more fortunate successors. But in the daily routine we may vary
this procedure a little. We draw there particular inferences from correct and
simple observations. “From facts to ideas,” says Öttingen.[45] “The world
has for several millenniums tried to subdue matter to preconceptions and the
world has failed. Now the procedure is reversed.” “From facts to ideas”—
there lies our road, let us for once observe the facts of life without prejudice,
without maxims built on preconceptions; let us establish them, strip them of
all alien character. Then finally, when we find nothing more in the least
doubtful, we may theorize about them, and draw inferences, modestly and
with caution.
Every fundamental investigation must first of all establish the nature of
its subject matter. This is the maxim of a book, “Über die Dummheit”[46]
(1886), one of the wisest ever written. The same axiomatic proposition must
dominate every legal task, but especially every task of criminal law. It is
possible to read thousands upon thousands of testimonies and to make again
this identical, fatiguing, contrary observation: The two, witness and judge,
have not defined the nature of this subject; they have not determined what
they wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been established,
the one did not know and the other did not tell him. But the blame for this
defective formulation does not rest with the witness—formulation was the
other man’s business.

When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[47] I believe, has for our purpose defined
it best. It consists in trying to keep constant the complex of conditions
demonstrated to be necessary for the realization of a given effect. It consists
in varying these conditions, in isolating one from the other in a numerically
determinable order, and finally, in establishing the accompanying changes
with regard to the effect, in a quantified or countable order.
I can not here say anything further to show that this is the sole correct
method of establishing the necessary principles of our science. The aim is
only to test the practicality of this method in the routine of a criminal case,
and to see if it is not, indeed, the only one by which to attain complete and
indubitable results. If it is, it must be of use not only during the whole trial
—not only in the testing of collected evidence, but also in the testing of
every individual portion thereof, analyzed into its component elements.
Let us first consider the whole trial.
The effect is here the evidence of A’s guilt. The complex conditions for
its establishment are the collective instruments in getting evidence; the
individual conditions are to be established by means of the individual
sources of evidence—testimony of witnesses, examination of the premises,
obduction, protocol, etc.
The constantification of conditions now consists in standardizing the
present instance, thus: Whenever similar circumstances are given, i.e.: the
same instruments of evidence are present, the evidence of guilt is
established. Now the accompanying changes with regard to the effect, i.e.:
proof of guilt through evidence, have to be tested—therefore the individual
conditions—i.e.: the individual sources of evidence have to be established
and their values to be determined and varied. Finally, the accompanying
change in effect (conviction by evidence) is to be tested. The last procedure
requires discussion; the rest is self evident. In our business isolation is
comparatively easy, inasmuch as any individual statement, any visual
impression, any effect, etc., may be abstracted without difficulty. Much
harder is the determination of its value. If, however, we clearly recognize
that it is necessary to express the exact value of each particular source of
evidence, and that the task is only to determine comparative valuation, the
possibility of such a thing, in at least a sufficiently close degree of certainty,
must be granted. The valuation must be made in respect of two things—(1)

its reliability (subjective and relative); (2) its significance (objective and
absolute). On the one hand, the value of the evidence itself must be tested
according to the appraisement of the person who presents it and of the
conditions under which he is important; on the other, what influence
evidence accepted as reliable can exercise upon the effect, considered in and
for itself. So then, when a testimony is being considered, it must first be
determined whether the witness was able and willing to speak the truth, and
further, what the importance of the testimony may be in terms of the
changes it may cause in the organization of the case.
Of greatest importance and most difficult is the variation of conditions
and the establishment of the changes thereby generated, with regard to the
effect,—i.e.: the critical interpretation of the material in hand. Applied to a
case, the problem presents itself in this wise: I consider each detail of
evidence by itself and cleared of all others, and I vary it as often as it is
objectively possible to do so. Thus I suppose that each statement of the
witness might be a lie, entirely or in part; it might be incorrect observation,
false inference, etc.—and then I ask myself: Does the evidence of guilt, the
establishment of an especial trial, now remain just? If not, is it just under
other and related possible circumstances? Am I in possession of these
circumstances? If now the degree of apparent truth is so far tested that these
variations may enter and the accusation still remain just, the defendant is
convicted: but only under these circumstances.
The same procedure here required for the conduct of a complete trial, is
to be followed also, in miniature, in the production of particulars of
evidence. Let us again construe an instance. The effect now is the
establishment of the objective correctness of some particular point (made by
statements of witnesses, looks, etc.). The complex of conditions consists in
the collection of these influences which might render doubtful the
correctness—i.e., dishonesty of witnesses, defective examination of locality,
unreliability of the object, ignorance of experts, etc. It is necessary to know
clearly which of these influences might be potent in the case in hand, and to
what degree. The standardization consists, also this time, in the comparison
of the conditions of the present case with those of other cases. The
variation, again, consists in the abstraction from the evidence of those
details which might possibly be incorrect, thus correcting it, from various
points of view, and finally, in observing the effect as it defines itself under
this variety of formulation.

This procedure, adopted in the preparation and judgment of each new
piece of evidence, excludes error as far as our means conceivably permit.
Only one thing more is needful—a narrow and minute research into that
order of succession which is of indispensable importance in every natural
science. “Of all truths concerning natural phenomena, those which deal with
the order of succession are for us the most important. Upon a knowledge of
them is grounded every intelligent anticipation of the future” (J. S. Mill).[48]
The oversight of this doctrine is the largest cause of our failures. We must,
in the determination of evidence, cleave to it. Whenever the question of
influence upon the “effect” is raised, the problem of order is found
invariably the most important. Mistakes and impossibilities are in the main
discovered only when the examination of the order of succession has been
undertaken.
In short: We have confined ourselves long enough to the mere study of
our legal canons. We now set out upon an exact consideration of their
material. To do this, obviously demands a retreat to the starting-point and a
beginning we ought to have made long ago; but natural sciences, on which
we model ourselves, have had to do the identical thing and are now at it
openly and honestly. Ancient medicine looked first of all for the universal
panacea and boiled theriac; contemporary medicine dissects, uses the
microscope, and experiments, recognizes no panacea, accepts barely a few
specifics. Modern medicine has seen the mistake. But we lawyers boil our
theriac even nowadays and regard the most important study, the study of
reality, with arrogance.
Topic II. PSYCHOLOGIC LESSONS.
Section 3. (a) General Considerations.

Of the criminalist’s tasks, the most important are those involving his
dealings with the other men who determine his work, with witnesses,
accused, jurymen, colleagues, etc. These are the most pregnant of
consequences. In every case his success depends on his skill, his tact, his
knowledge of human nature, his patience, and his propriety of manner.
Anybody who takes the trouble, may note speedily the great differences in
efficiency between those who do and those who do not possess such
qualities. That they are important to witnesses and accused is undoubted.
But this importance is manifest to still others. The intercourse between
various examining judges and experts is a matter of daily observation. One

judge puts the question according to law and expects to be respected. He
does not make explicit how perfectly indifferent the whole affair is to him,
but experts have sufficient opportunity to take note of that fact. The other
narrates the case, explains to the experts its various particular possibilities,
finds out whether and what further elucidation they demand, perhaps
inquires into the intended manner and method of the expert solution of the
problem, informs himself of the case by their means, and manifests especial
interest in the difficult and far too much neglected work of the experts. It
may be said that the latter will do their work in the one case as in the other,
with the same result. This would be true if, unfortunately, experts were not
also endowed with the same imperfections as other mortals, and are thus far
also infected by interest or indifference. Just imagine that besides the
examining magistrate of a great superior court, every justice and, in
addition, all the chiefs and officials manifested equal indifference! Then
even the most devoted experts would grow cool and do only what they
absolutely had to. But if all the members of the same court are actuated by
the same keen interest and comport themselves as described, how different
the affair becomes! It would be impossible that even the indifferent, and
perhaps least industrious experts, should not be carried out of themselves by
the general interest, should not finally realize the importance of their
position, and do their utmost.
The same thing is true of the president, the jurymen and their fellow-
judges. It is observable that here and there a presiding justice succeeds in
boring all concerned during even criminal cases interesting in themselves;
the incident drags on, and people are interested only in finally seeing the
end of the matter. Other presiding justices again, fortunately the majority,
understand how to impart apparent importance to even the simplest case.
Whatever office anybody may hold,—he and his mates are commissioned in
the common task, and should the thing come up for judgment, everybody
does his best. The difference here is not due to temperamental freshness or
tediousness; the result depends only upon a correct or incorrect
psychological handling of the participants. The latter must in every single
case be led and trained anew to interest, conscientiousness and co-operation.
In this need lies the educational opportunity of the criminal judge. Whether
it arises with regard to the accused, the witness, the associate justice, or the
expert, is all one; it is invariably the same.

That knowledge of human nature is for this purpose most important to
the criminalist will be as little challenged as the circumstance that such
knowledge can not be acquired from books. Curiously enough, there are not
a few on the subject, but I suspect that whoever studies or memorizes them,
(such books as Pockel’s, Herz’s, Meister’s, Engel’s, Jassoix’s, and others,
enumerated by Volkmar) will have gained little that is of use. A knowledge
of human nature is acquired only (barring of course a certain talent thereto)
by persevering observation, comparison, summarization, and further
comparison. So acquired, it sets its possessor to the fore, and makes him
independent of a mass of information with which the others have to repair
their ignorance of mankind. This is to be observed in countless cases in our
profession. Whoever has had to deal with certain sorts of swindlers, lying
horsetraders, antiquarians, prestidigitators, soon comes to the remarkable
conclusion, that of this class, exactly those who flourish most in their
profession and really get rich understand their trade the least. The horse-
dealer is no connoisseur whatever in horses, the antiquarian can not judge
the value nor the age and excellence of antiquities, the card-sharp knows a
few stupid tricks with which, one might think, he ought to be able to
deceive only the most innocent persons. Nevertheless they all have
comfortable incomes, and merely because they know their fellows and have
practised this knowledge with repeatedly fresh applications.
I do not of course assert that we criminalists need little scholarly
knowledge of law, and ought to depend entirely upon knowledge of men.
We need exactly as much more knowledge as our task exceeds that of the
horse-dealer, but we can not do without knowledge of humanity. The
immense onerousness of the judge’s office lies in just the fact that he needs
so very much more than his bare legal knowledge. He must, before all
things, be a jurist and not merely a criminalist; he must be in full possession
not only of the knowledge he has acquired in his academy, but of the very
latest up-to-date status of his entire science. If he neglects the purely
theoretical, he degenerates into a mere laborer. He is in duty bound not only
to make himself familiar with hundreds of things, to be able to consort with
all sorts of crafts and trades, but also, finally, to form so much out of the
material supplied him by the law as is possible to human power.
Section 4. (b) Integrity of Witnesses.

One of the criminal judge’s grossest derelictions from duty consists in
his simply throwing the witness the question and in permitting him to say
what he chooses. If he contents himself in that, he leaves to the witness’s
conscience the telling of the truth, and the whole truth; the witness is, in
such a case, certainly responsible for one part of the untruthful and
suppressed, but the responsibility for the other, and larger part, lies with the
judge who has failed to do his best to bring out the uttermost value of the
evidence, indifferently for or against the prisoner. The work of education is
intended for this purpose,—not, as might be supposed, for training the
populace as a whole into good witnesses, but to make that individual into a
good, trustworthy witness who is called upon to testify for the first, and,
perhaps, for the last time in his life. This training must in each case take two
directions—it must make him want to tell the truth; it must make him able
to tell the truth. The first requirement deals not only with the lie alone, it
deals with the development of complete conscientiousness. How to face the
lie itself can not be determined by means of training, but conscientious
answers under examination can certainly be so acquired. We are not here
considering people to whom truth is an utter stranger, who are
fundamentally liars and whose very existence is a libel on mankind. We
consider here only those people who have been unaccustomed to speaking
the full and unadulterated truth, who have contented themselves throughout
their lives with “approximately,” and have never had the opportunity of
learning the value of veracity. It may be said that a disturbingly large
number of people are given to wandering, in conversation, and in the
reproduction of the past. They do not go straight, quickly, and openly to the
point, they loiter toward it—“If I do not reach it in a bee line, I can get
along on by-paths, if not to-day, then to-morrow; and if I really do not get to
it at all, I do get somewhere else.” Such people have not homes but inns—if
they are not in one place, another will do.
These persons are characterized by the event that whenever one has seen
their loitering and puts the matter to them with just anger, they either get
frightened or say carelessly, “Oh, I thought this was not so accurate.” This
famine of conscience, this indifference to truth, does far-reaching damage in
our profession. I assert that it does immensely greater harm than obvious
falsehood, because, indeed, the unvarnished lie is much more easily
discoverable than the probable truth which is still untruth. Moreover, lies
come generally from people with regard to whom one is, for one reason or

another, already cautious, while these insinuating approximations are made
by people who are not mistrusted at all.[49]
The lack of conscientiousness is common to all ages, both sexes, and to
all sorts and conditions of men. But it is most characteristically frequent and
sharply defined among people who have no real business in life. Whoever
romances in the daily life, romances when he ought to be absolutely
truthful. The most dangerous of this class are those who make a living by
means of show and exhibition. They are not conscienceless because they do
nothing worth while; they do nothing worth while because they are
conscienceless. To this class belong peddlers, street merchants, inn-keepers,
certain shop-keepers, hack-drivers, artists, etc., and especially prostitutes
(cf. Lombroso, etc., etc.). All these people follow a calling perhaps much
troubled, but they do no actual work and have chosen their profession to
avoid regular, actual work. They have much unoccupied time, and when
they are working, part of the work consists of gossip, part of loafing about,
or of a use of the hands that is little more. In brief,—since they loiter about
and make a profit out of it, it is no wonder that in giving evidence they also
loaf and bring to light only approximate truth. Nor is it difficult to indicate
analogous persons in the higher walks of life.
The most hateful and most dangerous of these people are the congenital
tramps—people who did not have to work and faithfully pursued the
opportunity of doing nothing. Whoever does not recognize that the world
has no place for idlers and that life on God’s earth must be earned by labor,
is without conscience. No conscientious testimony need be expected from
such. Among the few rules without exception which in the course of long
experience the criminalist may make, this is one—that the real tramps of
both sexes and all walks of life will never testify conscientiously;—hic niger
est, hunc Tu, Romane, caveto.
Section 5. (c) The Correctness of Testimony.

The training of the witness into a capacity for truth-telling must be
based, (1) on the judge’s knowledge of all the conditions that affect,
negatively, correct observations and reproductions; (2) on his making clear
to himself whether and which conditions are operative in the case in
question; and (3) on his aiming to eliminate this negative influence from the
witness. The last is in many cases difficult, but not impossible. That
mistakes have been made is generally soon noted, but then, “being called

and being chosen” are two things; and similarly, the discovery of what is
correct and the substitution of the essential observations for the opinionative
ones, is always the most difficult of the judge’s tasks.
When the witness is both unwilling to tell the truth and unable to do so,
the business of training may be approached from a few common view-
points. Patience with the witness is perhaps the most important key to
success. No doubt it is difficult to be patient where there is no time; and
what with our contemporary over-tasking, there is no time. But that must be
altered. Justice must have strength to keep everybody’s labor proportional to
his task. A nation whose representatives do not grant money enough for this
purpose must not expect satisfactory law courts—“no checkee no washee;”
no money no justice. People who have time will acquire patience.
Patience is necessary above all while taking evidence. A great many
witnesses are accustomed to say much and redundantly, and again, most
criminal justices are accustomed to try to shut them off and to require brief
statements. That is silly. If the witness is wandering on purpose, as many a
prisoner does for definite reasons of his own, he will spread himself still
more as he recognizes that his examiner does not like it. To be disagreeable
is his purpose. He is never led by impatience beyond his introduction, and
some piece of evidence is lost because almost every accused who speaks
unintelligibly on purpose, says too much in the course of his speech and
brings things to light that no effort might otherwise have attained to.
Besides, whoever is making a purposely long-winded testimony does not
want to say anything superfluous, and if he actually does so, is unaware of
it. And even when he knows that he is talking too much (most of the time he
knows it from the impatient looks of his auditors), he never can tell just
what exceeded the measure. If, then, he is asked to cut it short, he remains
unmoved, or at most begins again at the beginning, or, if he actually
condescends, he omits things of importance, perhaps even of the utmost
importance. Nor must it be forgotten that at least a large proportion of such
people who are brought to court have prepared their story or probably
blocked it out in the rough. If they are not permitted to follow their plans,
they get confused, and nothing coherent or half-coherent is discovered. And
generally those who say most have thought their testimony over before.
Those who merely have to say no more than yes and no at the trial do not
reduce the little they are going to say to any great order; that is done only by
such as have a story to tell. Once the stream of talk breaks loose it is best

allowed to flow on, and only then interrupted with appropriate questions
when it threatens to become exhausting. Help against too much talk can be
found in one direction. But it must be made use of before the evil begins,
and is in any event of use only in the description of a long chain of events,
—e.g., a great brawl. There, if one has been put in complete possession of
the whole truth, through one or more witnesses, the next witness may be
told: “Begin where X entered the room.” If that is not done, one may be
compelled to hear all the witness did the day before the brawl and how these
introductions, in themselves indifferent, have led to the event. But if you set
the subject, the witness simply abandons the first part of possibly studied
testimony without thereby losing his coherence. The procedure may be
accurately observed: The witness is told, “Begin at this or that point.” This
deliverance is generally followed by a pause during which he obviously
reviews and sets aside the part of his prepared speech dealing with the
events preliminary to the required points. If, however, the setting of a
starting point does not work and the witness says he must begin at the
earlier stage, let him do so. Otherwise he tries so hard to begin according to
request that, unable to go his own way, he confuses everything.
The patience required for taking testimony is needful also in cross-
examination. Not only children and slow-witted folk, but also bright persons
often answer only “yes” and “no,”[50] and these bare answers demand a
patience most necessary with just this bareness, if the answers are to be
pursued for some time and consecutively. The danger of impatience is the
more obvious inasmuch as everyone recognizes more or less clearly that he
is likely to set the reserved witness suggestive questions and so to learn
things that the witness never would have said. Not everybody, indeed, who
makes monosyllabic replies in court has this nature, but in the long run, this
common characteristic is manifest, and these laconic people are really not
able to deliver themselves connectedly in long speeches. If, then, the
witness has made only the shortest replies and a coherent well-composed
story be made of them, the witness will, when his testimony is read to him,
often not notice the untruths it might contain. He is so little accustomed to
his own prolonged discourse that at most he wonders at his excellent speech
without noticing even coarse falsehoods. If, contrary to expectation, he does
notice them, he is too chary of words to call attention to them, assents, and
is glad to see the torture coming to an end. Hence, nothing but endless
patience will do to bring the laconic witness to say at least enough to make

his information coherent, even though brief. It may be presented in this
form for protocol.
Section 6. (d) Presuppositions of Evidence-Taking.

One of the most important rules of evidence-taking is not to suppose that
practically any witness is skilled in statement of what he remembers. Even
of child training, Fröbel[51] says, “Men must be drawn out, not probed.” And
this is the more valid in jurisprudence, and the more difficult, since the
lawyers have at most only as many hours with the individual as the teacher
has years. However, we must aim to draw the witness out, and if it does not
work at first, we must nevertheless not despair of succeeding.
The chief thing is to determine the witness’s level and then meet him on
it. We certainly can not succeed, in the short time allowed us, to raise him to
ours. “The object of instruction” (says Lange[52]) “is to endow the pupil
with more apperceptive capacity, i.e., to make him intellectually free. It is
therefore necessary to discover his ‘funded thoughts,’ and to beware of
expounding too much.” This is not a little true. The development of
apperceptive capacity is not so difficult for us, inasmuch as our problem is
not to prepare our subject for life, but for one present purpose. If we desire,
to this end, to make one more intellectually free, we have only to get him to
consider with independence the matter with which we are concerned, to
keep him free of all alien suggestions and inferences, and to compel him to
see the case as if no influences, personal or circumstantial, had been at work
on him. This result does not require merely the setting aside of special
influences, nor the setting aside of all that others have said to him on the
matter under discussion, nor the elucidation of the effect of fear,[53] of
anger, of all such states of mind as might here have been operative,—it
requires the establishment of his unbiased vision of the subject from a
period antecedent to these above-mentioned influences. Opinions,
valuations, prejudices, superstitions, etc., may here be to a high degree
factors of disturbance and confusion. Only when the whole Augean stable is
swept out may the man be supposed capable of apperception, may the thing
he is to tell us be brought to bear upon him and he be permitted to reproduce
it.
This necessary preliminary is not so difficult if the second of the above-
mentioned rules is observed and the “funded thought” of the witness is
studied out. It may be said, indeed, that so long as two people converse,

unaware of each other’s “funded thought,” they speak different languages.
Some of the most striking misunderstandings come from just this reason. It
is not alone a matter of varying verbal values, leading to incompatible
inferences; actually the whole of a man’s mind is involved. It is generally
supposed to be enough to know the meaning of the words necessary for
telling a story. But such knowledge leads only to external and very
superficial comprehension; real clearness can be attained only by knowing
the witness’s habits of thought in regard to all the circumstances of the case.
I remember vividly a case of jealous murder in which the most important
witness was the victim’s brother, an honest, simple, woodsman, brought up
in the wilderness, and in every sense far-removed from idiocy. His
testimony was brief, decided and intelligent. When the motive for the
murder, in this case most important, came under discussion, he shrugged his
shoulders and answered my question—whether it was not committed on
account of a girl—with, “Yes, so they say.” On further examination I
reached the astonishing discovery that not only the word “jealousy,” but the
very notion and comprehension of it were totally foreign to the man. The
single girl he at one time thought of was won away from him without
making him quarrelsome, nobody had ever told him of the pangs and
passions of other people, he had had no occasion to consider the theoretic
possibility of such a thing, and so “jealousy” remained utterly foreign to
him. It is clear that his hearing now took quite another turn. All I thought I
heard from him was essentially wrong; his “funded thought” concerning a
very important, in this case a regulative concept, had been too poor.
The discovery of the “funded thought” is indubitably not easy. But its
objective possibility with witness and accused is at least a fact. It is
excluded only where it is most obviously necessary—in the case of the jury,
and the impossibility in this case turns the institution of trial by jury into a
Utopian dream. The presiding officer of a jury court is in the best instances
acquainted with a few of the jurymen, but never so far as to have been
entrusted with their “funded thought.” Now and then, when a juryman asks
a question, one gets a glimpse of it, and when the public prosecutor and the
attorney for the defence make their speeches one catches something from
the jury’s expressions; and then it is generally too late. Even if it be
discovered earlier nothing can be done with it. Some success is likely in the
case of single individuals, but it is simply impossible to define the mental
habits of twelve men with whom one has no particular relations.

The third part of the Fröbelian rule, “To presuppose as little as possible,”
must be rigidly adhered to. I do not say this pessimistically, but simply
because we lawyers, through endless practice, arrange the issue so much
more easily, conceive its history better and know what to exclude and what,
with some degree of certainty, to retain. In consequence we often forget our
powers and present the unskilled laity, even when persons of education, too
much of the material. Then it must be considered that most witnesses are
uneducated, that we can not actually descend to their level, and their
unhappiness under a flood of strange material we can grasp only with
difficulty. Because we do not know the witness’s point of view we ask too
much of him, and therefore fail in our purpose. And if, in some exceptional
case, an educated man is on the stand, we fail again, since, having the habit
of dealing with the uneducated, we suppose this man to know our own
specialties because he has a little education. Experience does not dispel this
illusion. Whether actual training in another direction dulls the natural and
free outlook we desire in the witness, or whether, in our profession,
education presupposes tendencies too ideal, whatever be the reasons, it is a
fact that our hardest work is generally with the most highly educated
witnesses. I once had to write a protocol based on the testimony of a famous
scholar who was witness in a small affair. It was a slow job. Either he did
not like the terms as I dictated them, or he was doubtful of the complete
certainty of this or that assertion. Let alone that I wasted an hour or two, that
protocol, though rewritten, was full of corrections and erasures. And the
thing turned out to be nonsense at the end. The beginning contradicted the
conclusion; it was unintelligible, and still worse, untrue. As became
manifest later, through the indubitable testimony of many witnesses, the
scholar had been so conscientious, careful and accurate that he simply did
not know what he had seen. His testimony was worthless. I have had such
experiences repeatedly and others have confessed them. To the question:
Where not presuppose too much? the answer is: everywhere. First of all,
little must be presupposed concerning people’s powers of observation. They
claim to have heard, seen or felt so and so, and they have not seen, heard, or
felt it at all, or quite differently. They assent vigorously that they have
grasped, touched, counted or examined something, and on closer
examination it is demonstrated that it was only a passing glance they threw
on it. And it is still worse where something more than ordinary perception is
being considered, when exceptionally keen senses or information are

necessary. People trust the conventional and when close observation is
required often lack the knowledge proper to their particular status. In this
way, by presupposing especial professional knowledge in a given witness,
great mistakes are made. Generally he hasn’t such knowledge, or has not
made any particular use of it.
In the same way too much attention and interest are often presupposed,
only to lead later to the astonishing discovery of how little attention men
really pay to their own affairs. Still less, therefore, ought knowledge in less
personal things be presupposed, for in the matter of real understanding, the
ignorance of men far exceeds all presuppositions. Most people know the
looks of all sorts of things, and think they know their essences, and when
questioned, invariably assert it, quite in good faith. But if you depend on
such knowledge bad results arise that are all the more dangerous because
there is rarely later opportunity to recognize their badness.
As often as any new matter is discussed with a witness, it is necessary,
before all, to find out his general knowledge of it, what he considers it to be,
and what ideas he connects with it. If you judge that he knows nothing
about it and appraise his questions and conclusions accordingly, you will at
least not go wrong in the matter, and all in all attain your end most swiftly.
At the same time it is necessary to proceed as slowly as possible. It is
Carus[54] who points out that a scholar ought not to be shown any object
unless he can not discover it or its like for himself. Each power must have
developed before it can be used. Difficult as this procedure generally is, it is
necessary in the teaching of children, and is there successful. It is a form of
education by examples. The child is taught to assimilate to its past
experience the new fact, e.g.: in a comparison of some keen suffering of the
child with that it made an animal suffer. Such parallels rarely fail, whether
in the education of children or of witnesses. The lengthy description of an
event in which, e.g., somebody is manhandled, may become quite different
if the witness is brought to recall his own experience. At first he speaks of
the event as perhaps a “splendid joke,” but as soon as he is brought to speak
of a similar situation of his own, and the two stories are set side by side, his
description alters. This exemplification may be varied in many directions
and is always useful. It is applicable even to accused, inasmuch as the
performer himself begins to understand his deed, when it can be attached to
his fully familiar inner life.

The greatest skill in this matter may be exercised in the case of the jury.
Connect the present new facts with similar ones they already know and so
make the matter intelligible to them. The difficulty here, is again the fact
that the jury is composed of strangers and twelve in number. Finding
instances familiar to them all and familiar in such wise that they may easily
link them with the case under consideration, is a rare event. If it does
happen the success is both significant and happy.
It is not, however, sufficient to seek out a familiar case analogous to that
under consideration. The analogy should be discovered for each event, each
motive, each opinion, each reaction, each appearance, if people are to
understand and follow the case. Ideas, like men, have an ancestry, and a
knowledge of the ancestors leads to a discovery of the cousins.
Section 7. (e) Egoism.

It is possible that the inner character of egoism shall be as profoundly
potent in legal matters as in the daily life. Goethe has experienced its effect
with unparalleled keenness. “Let me tell you something,” he writes
(Conversations with Eckermann. Vol. 1). “All periods considered regressive
or transitional are subjective. Conversely all progressive periods look
outward. The whole of contemporary civilization is reactionary, because
subjective.... The thing of importance is everywhere the individual who is
trying to show off his lordliness. Nowhere is any mentionable effort to be
found that subordinates itself through love of the whole.”
These unmistakable terms contain a “discovery” that is applicable to our
days even better than to Goethe’s. It is characteristic of our time that each
man has an exaggerated interest in himself. Consequently, he is concerned
only with himself or with his immediate environment, he understands only
what he already knows and feels, and he works only where he can attain
some personal advantage. It is hence to be concluded that we may proceed
with certainty only when we count on this exaggerated egoism and use it as
a prime factor. The most insignificant little things attest this. A man who
gets a printed directory will look his own name up, though he knows it is
there, and contemplate it with pleasure; he does the same with the
photograph of a group of which his worthy self is one of the immortalized.
If personal qualities are under discussion, he is happy, when he can say,
—“Now I am by nature so.”—If foreign cities are under discussion, he tells
stories of his native city, or of cities that he has visited, and concerning

things that can interest only him who has been there. Everyone makes an
effort to bring something of his personal status to bear,—either the
conditions of his life, or matters concerning only him. If anybody announces
that he has had a good time, he means without exception, absolutely without
exception, that he has had an opportunity to push his “I” very forcefully into
the foreground.
Lazarus[55] has rightly given this human quality historical significance:
“Pericles owed a considerable part of his political dictatorate to the
circumstance of knowing practically all Athenian citizens by name.
Hannibal, Wallenstein, Napoleon I, infected their armies, thanks to
ambition, with more courage than could the deepest love of arms, country
and freedom, just through knowing and calling by name the individual
soldiers.”
Daily we get small examples of this egoism. The most disgusting and
boresome witness, who is perhaps angry at having been dragged so far from
his work, can be rendered valuable and useful through the initial show of a
little personal interest, of some comprehension of his affairs, and of some
consideration, wherever possible, of his views and efficiency. Moreover,
men judge their fellows according to their comprehension of their own
particular professions. The story of the peasant’s sneer at a physician, “But
what can he know when he does not even know how to sow oats?” is more
than a story, and is true of others besides illiterate boors. Such an attitude
recurs very frequently, particularly among people of engrossing trades that
require much time,—e.g., among soldiers, horsemen, sailors, hunters, etc. If
it is not possible to understand these human vanities and to deal with these
people as one of the trade, it is wise at least to suggest such understanding,
to show interest in their affairs and to let them believe that really you think
it needful for everybody to know how to saddle a horse correctly, or to
distinguish the German bird-dog from the English setter at a thousand
paces. What is aimed at is not personal respect for the judge, but for the
judge’s function, which the witness identifies with the judge’s person. If he
has such respect, he will find it worth the trouble to help us out, to think
carefully and to assist in the difficult conclusion of the case. There is an
astonishing difference between the contribution of a sulking and contrary
witness and of one who has become interested and pleased by the affair. Not
only quantity, but truth and reliability of testimony, are immensely greater in
the latter case.

Besides, the antecedent self-love goes so far that it may become very
important in the examination of the accused. Not that a trap is to be set for
him; merely that since it is our business to get at the truth, we ought to
proceed in such proper wise with a denying accused as might bring to light
facts that otherwise careful manipulation would not have brought out. How
often have anonymous or pseudonymous criminals betrayed themselves
under examination just because they spoke of circumstances involving their
capital I, and spoke so clearly that now the clue was found, it was no longer
difficult to follow it up. In the examination of well-known criminals, dozens
of such instances occur—the fact is not new, but it needs to be made use of.
A similar motive belongs to subordinate forms of egoism—the obstinacy
of a man who may be so vexed by contradiction as to drive one into despair,
and who under proper treatment becomes valuable. This I learned mainly
from my old butler, a magnificent honest soldier, a figure out of a comedy,
but endowed with inexorable obstinacy against which my skill for a long
time availed nothing. As often as I proposed something with regard to some
intended piece of work or alteration, I got the identical reply—“It won’t do,
sir.” Finally I got hold of a list and worked my plan—“Simon, this will now
be done as Simon recently said it should be done,—namely.” At this he
looked at me, tried to think when he had said this thing, and went and did it.
And in spite of frequent application this list has not failed once for some
years. What is best about it is that it will serve, mutatis mutandis, with
criminals. As soon as ever real balkiness is noted, it becomes necessary to
avoid the least appearance of contradictoriness, since that increases
difficulties. It is not necessary to lie or to make use of trickery. Only, avoid
direct contradiction, drop the subject in question, and return to it indirectly
when you perceive that the obstinate individual recognizes his error. Then
you may succeed in building him a golden bridge, or at least a barely visible
sidedoor where he can make his retreat unnoticed. In that case even the
most difficult of obstinates will no longer repeat the old story. He will repeat
only if he is pressed, and this although he is repeatedly brought back to the
point. If, however, the matter is once decided, beware of returning to it
without any other reason, save to confirm the settled matter quite
completely,—that would be only to wake the sleeper to give him a sleeping
powder.
Speaking generally, the significant rule is this: Egoism, laziness and
conceit are the only human motives on which one may unconditionally

depend. Love, loyalty, honesty, religion and patriotism, though firm as a
rock, may lapse and fall. A man might have been counted on for one of
these qualities ten times with safety, and on the eleventh, he might collapse
like a house of cards. Count on egoism and laziness a hundred or a thousand
times and they are as firm as ever. More simply, count on egoism—for
laziness and conceit are only modifications of egoism. The latter alone then
should be the one human motive to keep in mind when dealing with men.
There are cases enough when all the wheels are set in motion after a clue to
the truth, i.e., when there is danger that the person under suspicion is
innocent; appeals to honor, conscience, humanity and religion fail;—but run
the complete gamut of self-love and the whole truth rings clear. Egoism is
the best criterion of the presence of veracity. Suppose a coherent
explanation has been painfully constructed. It is obvious that the correctness
of the construction is studied with reference to the given motive. Now, if the
links in the chain reach easily back to the motive, there is at least the
possibility that the chain is free of error. What then of the motive? If it is
noble—friendship, love, humaneness, loyalty, mercy—the constructed chain
may be correct, and happily is so oftener than is thought; but it need not be
correct. If, however, the structure rests on egoism, in any of its innumerable
forms, and if it is logically sound, then the whole case is explained utterly
and reliably. The construction is indubitably correct.
Section 8. (f) Secrets.

The determination of the truth at law would succeed much less
frequently than it does if it were not for the fact that men find it very
difficult to keep secrets. This essentially notable and not clearly understood
circumstance is popularly familiar. Proverbs of all people deal with it and
point mainly to the fact that keeping secrets is especially difficult for
women. The Italians say a woman who may not speak is in danger of
bursting; the Germans, that the burden of secrecy affects her health and ages
her prematurely; the English say similar things still more coarsely. Classical
proverbs have dealt with the issue; numberless fairy tales, narratives, novels
and poems have portrayed the difficulty of silence, and one very fine
modern novel (Die Last des Schweigens, by Ferdinand Kürnberger) has
chosen this fact for its principal motive. The universal difficulty of keeping
silence is expressed by Lotze[56] in the dictum that we learn expression very
young and silence very late. The fact is of use to the criminalist not only in

regard to criminals, but also with regard to witnesses, who, for one reason
or another, want to keep something back. The latter is the source of a good
deal of danger, inasmuch as the witness is compelled to speak and circles
around the secret in question without touching it, until he points it out and
half reveals it. If he stops there, the matter requires consideration, for “a half
truth is worse than a whole lie.” The latter reveals its subject and intent and
permits of defence, while the half truth may, by association and
circumscriptive limitations, cause vexatious errors both as regards the
identity of the semi-accused and as regards the circumstances with which he
is thus involved. For this reason the criminalist must consider the question
of secrets carefully.
As for his own silence, this must be considered in both directions. That
he is not to blab official secrets is so obvious that it need not be spoken of.
Such blabbing is so negligent and dishonorable that we must consider it
intrinsically impossible. But it not infrequently happens that some
indications are dropped or persuaded out of a criminal judge, generally out
of one of the younger and more eager men. They mention only the event
itself, and not a name, nor a place, nor a particular time, nor some even
more intimate matter—there seems no harm done. And yet the most
important points have often been blabbed of in just such a way. And what is
worst of all, just because the speaker has not known the name nor anything
else concrete, the issue may be diverted and enmesh some guiltless person.
It is worth considering that the effort above mentioned is made only in the
most interesting cases, that crimes especially move people to disgusting
interest, due to the fact that there is a more varied approach to synthesis of a
case when the same story is repeated several times or by various witnesses.
For by such means extrapolations and combinations of the material are
made possible. By way of warning, let me remind you of an ancient and
much quoted anecdote, first brought to light by Boccaccio: A young and
much loved abbé was teased by a bevy of ladies to narrate what had
happened in the first confession he had experienced. After long hesitation
the young fellow decided that it was no sin to relate the confessed sin if he
suppressed the name of the confessor, and so he told the ladies that his first
confession was of infidelity. A few minutes later a couple of tardy guests
appeared,—a marquis and his charming wife. Both reproached the young
priest for his infrequent visits at their home. The marquise exclaimed so that
everybody heard, “It is not nice of you to neglect me, your first confessée.”

This squib is very significant for our profession, for it is well known how, in
the same way, “bare facts,” as “completely safe,” are carried further. The
listener does not have to combine them; the facts combine themselves by
means of others otherwise acquired, and finally the most important official
matters, on the concealment of which much may perhaps have depended,
become universally known. Official secrets have a general significance, and
must therefore be guarded at all points and not merely in detail.
The second direction in which the criminal justice must maintain silence
looks toward witnesses and accused. If, in the first instance, the cause of too
much communicativeness was an over-proneness to talk; its cause in this
case is a certain conceit that teases one into talking. Whether the justice
wants to show the accused how much he already knows or how correctly he
has drawn his conclusions; whether he wishes to impress the witness by his
confidences, he may do equally as much harm in one case as in the other.
Any success is made especially impossible if the judge has been in too
much of a hurry and tried to show himself fully informed at the very
beginning, but has brought out instead some error. The accused naturally
leaves him with his false suppositions, they suggest things to the witness—
and what follows may be easily considered. Correct procedure in such
circumstances is difficult. Never to reveal what is already known, is to
deprive oneself of one of the most important means of examination; use of it
therefore ought not to be belated. But it is much worse to be premature or
garrulous. In my own experience, I have never been sorry for keeping
silence, especially if I had already said something. The only rule in the
matter is comparatively self-evident. Never move toward any incorrectness
and never present the appearance of knowing more than you actually do.
Setting aside the dishonesty of such a procedure, the danger of a painful
exposure in such matters is great.
There is still another great danger which one may beware of, optima fide,
—the danger of knowing something untrue. This danger also is greatest for
the greatest talent and the greatest courage among us, because they are the
readiest hands at synthesis, inference, and definition of possibilities, and see
as indubitable and shut to contradiction things that at best are mere
possibilities. It is indifferent to the outcome whether a lie has been told
purposely or whether it has been the mere honest explosion of an over-
sanguine temperament. It is therefore unnecessary to point out the occasion
for caution. One need only suggest that something may be learned from

people who talk too much. The over-communicativeness of a neighbor is
quickly noticeable, and if the why and how much of it are carefully studied
out, it is not difficult to draw a significant analogy for one’s own case. In the
matter of secrets of other people, obviously the thing to be established first
is what is actually a secret; what is to be suppressed, if one is to avoid
damage to self or another. When an actual secret is recognized it is
necessary to consider whether the damage is greater through keeping or
through revealing the secret. If it is still possible, it is well to let the secret
be—there is always damage, and generally, not insignificant damage, when
it is tortured out of a witness. If, however, one is honestly convinced that the
secret must be revealed—as when a guiltless person is endangered—every
effort and all skill is to be applied in the revelation. Inasmuch as the least
echo of bad faith is here impossible, the job is never easy.
The chief rule is not to be overeager in getting at the desired secret. The
more important it is, the less ought to be made of it. It is best not directly to
lead for it. It will appear of itself, especially if it is important. Many a fact
which the possessor had set no great store by, has been turned into a
carefully guarded secret by means of the eagerness with which it was
sought. In cases of need, when every other means has failed, it may not be
too much to tell the witness, cautiously of course, rather more of the crime
than might otherwise have seemed good. Then those episodes must be
carefully hit on, which cluster about the desired secret and from which its
importance arises. If the witness understands that he presents something
really important by giving up his secret, surprising consequences ensue.
The relatively most important secret is that of one’s own guilt, and the
associated most suggestive establishment of it, the confession, is a very
extraordinary psychological problem.[57] In many cases the reasons for
confession are very obvious. The criminal sees that the evidence is so
complete that he is soon to be convicted and seeks a mitigation of the
sentence by confession, or he hopes through a more honest narration of the
crime to throw a great degree of the guilt on another. In addition there is a
thread of vanity in confession—as among young peasants who confess to a
greater share in a burglary than they actually had (easily discoverable by the
magniloquent manner of describing their actual crime). Then there are
confessions made for the sake of care and winter lodgings: the confession
arising from “firm conviction” (as among political criminals and others).
There are even confessions arising from nobility, from the wish to save an

intimate, and confessions intended to deceive, and such as occur especially
in conspiracy and are made to gain time (either for the flight of the real
criminal or for the destruction of compromising objects). Generally, in the
latter case, guilt is admitted only until the plan for which it was made has
succeeded; then the judge is surprised with well-founded, regular and
successful establishment of an alibi. Not infrequently confession of small
crimes is made to establish an alibi for a greater one. And finally there are
the confessions Catholics[58] are required to make in confessional, and the
death bed confessions. The first are distinguished by the fact that they are
made freely and that the confessee does not try to mitigate his crime, but is
aiming to make amends, even when he finds it hard; and desires even a
definite penance. Death bed confessions may indeed have religious grounds,
or the desire to prevent the punishment or the further punishment of an
innocent person.
Although this list of explicable confession-types is long, it is in no way
exhaustive. It is only a small portion of all the confessions that we receive;
of these the greater part remain more or less unexplained. Mittermaier[59]
has already dealt with these acutely and cites examples as well as the
relatively well-studied older literature of the subject. A number of cases may
perhaps be explained through pressure of conscience, especially where there
are involved hysterical or nervous persons who are plagued with vengeful
images in which the ghost of their victim would appear, or in whose ear the
unendurable clang of the stolen money never ceases, etc. If the confessor
only intends to free himself from these disturbing images and the
consequent punishment by means of confession, we are not dealing with
what is properly called conscience, but more or less with disease, with an
abnormally excited imagination.[60] But where such hallucinations are
lacking, and religious influences are absent, and the confession is made
freely in response to mere pressure, we have a case of conscience,[61]—
another of those terms which need explanation. I know of no analogy in the
inner nature of man, in which anybody with open eyes does himself
exclusive harm without any contingent use being apparent, as is the case in
this class of confession. There is always considerable difficulty in
explaining these cases. One way of explaining them is to say that their
source is mere stupidity and impulsiveness, or simply to deny their
occurrence. But the theory of stupidity does not appeal to the practitioner,
for even if we agree that a man foolishly makes a confession and later, when

he perceives his mistake, bitterly regrets telling it, we still find many
confessions that are not regretted and the makers of which can in no wise be
accused of defective intelligence. To deny that there are such is comfortable
but wrong, because we each know collections of cases in which no effort
could bring to light a motive for the confession. The confession was made
because the confessor wanted to make it, and that’s the whole story.
The making of a confession, according to laymen, ends the matter, but
really, the judge’s work begins with it. As a matter of caution all statutes
approve confessions as evidence only when they agree completely with the
other evidence. Confession is a means of proof, and not proof. Some
objective, evidentially concurrent support and confirmation of the
confession is required. But the same legal requirement necessitates that the
value of the concurrent evidence shall depend on its having been arrived at
and established independently. The existence of a confession contains
powerful suggestive influences for judge, witness, expert, for all concerned
in the case. If a confession is made, all that is perceived in the case may be
seen in the light of it, and experience teaches well enough how that alters
the situation. There is so strong an inclination to pigeon-hole and adapt
everything perceived in some given explanation, that the explanation is
strained after, and facts are squeezed and trimmed until they fit easily. It is a
remarkable phenomenon, confirmable by all observers, that all our
perceptions are at first soft and plastic and easily take form according to the
shape of their predecessors. They become stiff and inflexible only when we
have had them for some time, and have permitted them to reach an
equilibrium. If, then, observations are made in accord with certain notions,
the plastic material is easily molded, excrescences and unevenness are
squeezed away, lacunæ are filled up, and if it is at all possible, the
adaptation is completed easily. Then, if a new and quite different notion
arises in us, the alteration of the observed material occurs as easily again,
and only long afterwards, when the observation has hardened, do fresh
alterations fail. This is a matter of daily experience, in our professional as
well as in our ordinary affairs. We hear of a certain crime and consider the
earliest data. For one reason or another we begin to suspect A as the
criminal. The result of an examination of the premises is applied in each
detail to this proposition. It fits. So does the autopsy, so do the depositions
of the witnesses. Everything fits. There have indeed been difficulties, but
they have been set aside, they are attributed to inaccurate observation and

the like,—the point is,—that the evidence is against A. Now, suppose that
soon after B confesses the crime; this event is so significant that it sets aside
at once all the earlier reasons for suspecting A, and the theory of the crime
involves B. Naturally the whole material must now be applied to B, and in
spite of the fact that it at first fitted A, it does now fit B. Here again
difficulties arise, but they are to be set aside just as before.
Now if this is possible with evidence, written and thereby unalterable,
how much more easily can it be done with testimony about to be taken,
which may readily be colored by the already presented confession. The
educational conditions involve now the judge and his assistants on the one
hand, and the witnesses on the other.
Concerning himself, the judge must continually remember that his
business is not to fit all testimony to the already furnished confession,
allowing the evidence to serve as mere decoration to the latter, but that it is
his business to establish his proof by means of the confession, and by means
of the other evidence, independently. The legislators of contemporary
civilization have started with the proper presupposition—that also false
confessions are made,—and who of us has not heard such? Confessions, for
whatever reason,—because the confessor wants to die, because he is
diseased,[62] because he wants to free the real criminal,—can be discovered
as false only by showing their contradiction with the other evidence. If,
however, the judge only fits the evidence, he abandons this means of getting
the truth. Nor must false confessions be supposed to occur only in case of
homicide. They occur most numerously in cases of importance, where more
than one person is involved. It happens, perhaps, that only one or two are
captured, and they assume all the guilt, e.g., in cases of larceny, brawls,
rioting, etc. I repeat: the suggestive power of a confession is great and it is
hence really not easy to exclude its influence and to consider the balance of
the evidence on its merits,—but this must be done if one is not to deceive
oneself.
Dealing with the witness is still more ticklish, inasmuch as to the
difficulties with them, is added the difficulties with oneself. The simplest
thing would be to deny the existence of a confession, and thus to get the
witness to speak without prejudice. But aside from the fact of its
impossibility as a lie, each examination of a witness would have to be a
comedy and that would in many cases be impossible as the witness might
already know that the accused had confessed. The only thing to be done,

especially when it is permissible for other reasons, is to tell the witness that
a confession exists and to call to his attention that it is not yet evidence, and
finally and above all to keep one’s head and to prevent the witness from
presenting his evidence from the point of view of the already-established. In
this regard it can not be sufficiently demonstrated that the coloring of a true
bill comes much less from the witness than from the judge. The most
excited witness can be brought by the judge to a sober and useful point of
view, and conversely, the most calm witness may utter the most misleading
testimony if the judge abandons in any way the safe bottom of the
indubitably established fact.
Very intelligent witnesses (they are not confined to the educated classes)
may be dealt with constructively and be told after their depositions that the
case is to be considered as if there were no confession whatever. There is an
astonishing number of people—especially among the peasants—who are
amenable to such considerations and willingly follow if they are led on with
confidence. In such a case it is necessary to analyze the testimony into its
elements. This analysis is most difficult and important since it must be
determined what, taken in itself, is an element, materially, not formally, and
what merely appears to be a unit. Suppose that during a great brawl a man
was stabbed and that A confesses to the stabbing. Now a witness testified
that A had first uttered a threat, then had jumped into the brawl, felt in his
bag, and left the crowd, and that in the interval between A’s entering and
leaving, the stabbing occurred. In this simple case the various incidents
must be evaluated, and each must be considered by itself. So we consider—
Suppose A had not confessed, what would the threat have counted for?
Might it not have been meant for the assailants of the injured man? May his
feeling in the bag not be interpreted in another fashion? Must he have felt
for a knife only? Was there time enough to open it and to stab? Might the
man not have been already wounded by that time? We might then conclude
that all the evidence about A contained nothing against him—but if we
relate it to the confession, then this evidence is almost equal to direct
evidence of A’s crime.
But if individual sense-perceptions are mingled with conclusions, and if
other equivalent perceptions have to be considered, which occurred perhaps
to other people, then the analysis is hardly so simple, yet it must be made.
In dealing with less intelligent people, with whom this construction
cannot be performed, one must be satisfied with general rules. By

demanding complete accuracy and insisting, in any event, on the ratio
sciendi, one may generally succeed in turning a perception, uncertain with
regard to any individual, into a trustworthy one with regard to the confessor.
It happens comparatively seldom that untrue confessions are discovered, but
once this does occur, and the trouble is taken to subject the given evidence
to a critical comparison, the manner of adaptation of the evidence to the
confession may easily be discovered. The witnesses were altogether
unwilling to tell any falsehood and the judge was equally eager to establish
the truth, nevertheless the issue must have received considerable perversion
in order to fix the guilt on the confessor. Such examinations are so
instructive that the opportunity to make them should never be missed. All
the testimony presents a typical picture. The evidence is consistent with the
theory that the real confessor was guilty, but it is also consistent with the
theory that the real criminal was guilty, but some details must be altered,
often very many. If there is an opportunity to hear the same witnesses again,
the procedure becomes still more instructive. The witnesses (supposing they
want honestly to tell the truth) naturally confirm the evidence as it points to
the second, more real criminal, and if an explanation is asked for the
statements that pointed to the “confessor,” the answers make it indubitably
evident, that their incorrectness came as without intention; the circumstance
that a confession had been made acted as a suggestion.[63]
Conditions similar to confessional circumstances arise when other types
of persuasive evidence are gathered, which have the same impressive
influence as confessions. In such cases the judge’s task is easier than the
witness’s, since he need not tell them of evidence already at hand. How very
much people allow themselves to be influenced by antecedent grounds of
suspicion is a matter of daily observation. One example will suffice. An
intelligent man was attacked at night and wounded. On the basis of his
description an individual was arrested. On the next day the suspect was
brought before the man for identification. He identified the man with
certainty, but inasmuch as his description did not quite hit off the suspect he
was asked the reason for his certainty. “Oh, you certainly would not have
brought him here if he were not the right man,” was the astonishing reply.
Simply because the suspect was arrested on the story of the wounded man
and brought before him in prison garb, the latter thought he saw such
corroboration for his data as to make the identification certain—a pure
ὑστερον πρωτερον, which did not at all occur to him in connection with the

vivid impression of what he saw. I believe that to keep going with merely
what the criminalist knows about the matter, belongs to his most difficult
tasks.
Section 9. (g) Interest.

Anybody who means to work honestly must strive to awaken and to
sustain the interest of his collaborators. A judge’s duty is to present his
associates material, well-arranged, systematic, and exhaustive, but not
redundant; and to be himself well and minutely informed concerning the
case. Whoever so proceeds may be certain in even the most ordinary and
simplest cases, of the interest of his colleagues,—hence of their attention;
and, in consequence, of the best in their power. These are essentially self-
evident propositions. In certain situations, however, more is asked with
regard to the experts. The expert, whether a very modest workman or very
renowned scholar, must in the first instance become convinced of the
judge’s complete interest in his work; of the judge’s power to value the
effort and knowledge it requires; of the fact that he does not question and
listen merely because the law requires it, and finally of the fact that the
judge is endowed, so far as may be, with a definite comprehension of the
expert’s task.
However conscientiously and intensely the expert may apply himself to
his problem, it will be impossible to work at it with real interest if he finds
no co-operation, no interest, and no understanding among those for whom
he, at least formally, is at work. We may be certain that the paucity of
respect we get from the scientific representatives of other disciplines (let us
be honest,—such is the case) comes particularly from those relations we
have with them as experts, relations in which they find us so unintelligent
and so indifferent with regard to matters of importance. If the experts speak
of us with small respect and the attitude spreads and becomes general, we
get only our full due. Nobody can require of a criminal judge profound
knowledge of all other disciplines besides his own—the experts supply that
—but the judge certainly must have some insight into them in so far as they
affect his own work, if he is not to meet the expert unintelligent and
unintelligible, and if he is to co-operate with and succeed in appraising the
expert’s work. In a like fashion the judge may be required to take interest in
the experts’ result. If the judge receives their report and sticks to the
statutes, if he never shows that he was anxious about their verdict, and

merely views it as a number, it is no wonder that in the end the expert also
regards his work as a mere number, and loses interest. No man is interested
in a thing unless it is made interesting, and the expert is no exception.
Naturally no one would say that the judge should pretend interest,—that
would be worst of all;—he must be possessed of it, or he will not do for a
judge. But interest may be intensified and vitalized. If the judge perceives
that the finding of the experts is very important for his case he must at least
meet them with interest in it. If that is present he will read their reports
attentively, will note that he does not understand some things and ask the
experts for elucidation. One question gives rise to another, one answer after
another causes understanding, and understanding implies an ever-increasing
interest. It never happens that there should be difficulties because of a
request to judicial experts to explain things to the judge. I have never met
any in my own practice and have never heard any complaints. On the
contrary, pleasure and efficiency are generally noticeable in such
connections, and the state, above all, is the gainer. The simple explanation
lies here in the fact that the expert is interested in his profession, interested
in just that concrete way in which the incomparably greater number of
jurists are not. And this again is based upon a sad fact, for us. The chemist,
the physician, etc., studies his subject because he wants to become a
chemist, physician, etc., but the lawyer studies law not because he wants to
become a lawyer, but because he wants to become an official, and as he has
no especial interest he chooses his state position in that branch in which he
thinks he has the best prospects. It is a bitter truth and a general rule—that
those who want to study law and the science of law are the exceptions, and
that hence we have to acquire a real interest in our subject from laymen,
from our experts. But the interest can be acquired, and with the growth of
interest, there is growth of knowledge, and therewith increase of pleasure in
the work itself and hence success.
The most difficult problem in interest, is arousing the interest of
witnesses—because this is purely a matter of training. Receiving the
attention is what should be aimed at in rousing interest, inasmuch as full
attention leads to correct testimony—i.e., to the thing most important to our
tasks. “No interest, no attention,” says Volkmar.[64] “The absolutely new
does not stimulate; what narrows appreciation, narrows attention also.” The
significant thing for us is that “the absolutely new does not stimulate”—a
matter often overlooked. If I tell an uneducated man, with all signs of

astonishment, that the missing books of Tacitus’ “Annals” have been
discovered in Verona, or that a completely preserved Dinotherium has been
cut out of the ice, or that the final explanation of the Martian canals has
been made at Manora observatory,—all this very interesting news will leave
him quite cold; it is absolutely new to him, he does not know what it means
or how to get hold of it, it offers him no matter of interest.[65] I should have
a similar experience if, in the course of a big case, I told a man, educated,
but uninterested in the case, with joy, that I had finally discovered the
important note on which the explanation of the events depended. I could not
possibly expect interest, attention, and comprehension of a matter if my
interlocutor knows nothing about the issue or the reason of the note’s
importance. And in spite of the fact that everything is natural and can be
explained we have the same story every day. We put the witness a definite
question that is of immense importance to us, who are fully acquainted with
the problem, but is for the witness detached, incoherent, and therefore
barren of interest. Then who can require of an uninterested witness,
attention, and effective and well-considered replies?[66] I myself heard a
witness answer a judge who asked him about the weather on a certain day,
“Look here, to drag me so many miles to this place in order to discuss the
weather with me,—that’s—.” The old man was quite right because the
detached question had no particular purpose. But when it was
circumstantially explained to him that the weather was of uttermost
significance in this case, how it was related thereto, and how important his
answer would be, he went at the question eagerly, and did everything
thinkable in trying to recall the weather in question by bringing to bear
various associated events, and did finally make a decidedly valuable
addition to the evidence. And this is the only way to capture the attention of
a witness. If he is merely ordered to pay attention, the result is the same as if
he were ordered to speak louder,—he does it, in lucky cases, for a moment,
and then goes on as before. Attention may be generated but not commanded,
and may be generated successfully with everybody, and at all times, if only
the proper method is hit upon. The first and absolute requirement is to have
and to show the same interest oneself. For it is impossible to infect a man
with interest when you have no interest to infect with. There is nothing
more deadly or boresome than to see how witnesses are examined sleepily
and with tedium, and how the witnesses, similarly infected, similarly
answer. On the other hand, it is delightful to observe the surprising effect of

questions asked and heard with interest. Then the sleepiest witnesses, even
dull ones, wake up: the growth of their interest, and hence of their attention,
may be followed step by step; they actually increase in knowledge and their
statements gain in reliability. And this simply because they have seen the
earnestness of the judge, the importance of the issue, the case, the weighty
consequences of making a mistake, the gain in truth through watchfulness
and effort, the avoidance of error through attention. In this way the most
useful testimony can be obtained from witnesses who, in the beginning,
showed only despairing prospects.
Now, if one is already himself endowed with keen interest and resolved
to awaken the same in the witnesses, it is necessary carefully to consider the
method of so doing and how much the witness is to be told of what has
already been established, or merely been said and received as possibly
valuable. On the one hand it is true that the witness can be roused to
attention and to more certain and vigorous responses according to the
quantity of detail told him.[67] On the other, caution and other considerations
warn against telling an unknown witness, whose trustworthiness is not
ascertained, delicate and important matters. It is especially difficult if the
witness is to be told of presuppositions and combinations, or if he is to be
shown how the case would alter with his own answer. The last especially
has the effect of suggestion and must occur in particular and in general at
those times alone when his statement, or some part of it, is apparently of
small importance but actually of much. Often this importance can be made
clear to the witness only by showing him that the difference in the effect of
his testimony is pointed out to him because when he sees it he will find it
worth while to exert himself and to consider carefully his answer. Any one
of us may remember that a witness who was ready with a prompt, and to
him an indifferent reply, started thinking and gave an essentially different
answer, even contradictory to his first, when the meaning and the effect of
what he might say was made clear to him.
How and when the witness is to be told things there is no rule for. The
wise adjustment between saying enough to awaken interest and not too
much to cause danger is a very important question of tact. Only one certain
device may be recommended—it is better to be careful with a witness
during his preliminary examination and to keep back what is known or
suspected; thus the attention and interest of the witness may perhaps be
stimulated. If, however, it is believed that fuller information may increase

and intensify the important factors under examination, the witness is to be
recalled later, when it is safe, and his testimony is, under the new conditions
of interest, to be corrected and rendered more useful. In this case, too, the
key to success lies in increase of effort—but that is true in all departments
of law, and the interest of a witness is so important that it is worth the effort.
Topic III. PHENOMENOLOGY: STUDY OF THE OUTWARD
EXPRESSION OF MENTAL STATES.
Section 10.

Phenomenology is in general the science of appearances. In our usage it
is the systematic co-ordination of those outer symptoms occasioned by inner
processes, and conversely, the inference from the symptoms to them.
Broadly construed, this may be taken as the study of the habits and whole
bearing of any individual. But essentially only those external manifestations
can be considered that refer back to definite psychical conditions, so that
our phenomenology may be defined as the semiotic of normal psychology.
This science is legally of immense importance, but has not yet assumed the
task of showing how unquestionable inferences may be drawn from an
uncounted collection of outward appearances to inner processes. In addition,
observations are not numerous enough, far from accurate enough, and
psychological research not advanced enough. What dangerous mistakes
premature use of such things may lead to is evident in the teaching of the
Italian positivistic school, which defines itself also as psychopathic
semiotic. But if our phenomenology can only attempt to approximate the
establishment of a science of symptoms, it may at least study critically the
customary popular inferences from such symptoms and reduce exaggerated
theories concerning the value of individual symptoms to a point of
explanation and proof. It might seem that our present task is destructive, but
it will be an achievement if we can show the way to later development of
this science, and to have examined and set aside the useless material already
to hand.
Section 11. (a) General External Conditions.

“Every state of consciousness has its physical correlate,” says Helmholtz,
[68] and this proposition contains the all in all of our problem. Every mental
event must have its corresponding physical event[69] in some form, and is
therefore capable of being sensed, or known to be indicated by some trace.

Identical inner states do not, of course, invariably have identical bodily
concomitants, neither in all individuals alike, nor in the same individual at
different times. Modern methods of generalization so invariably involve
danger and incorrectness that one can not be too cautious in this matter. If
generalization were permissible, psychical events would have to be at least
as clear as physical processes, but that is not admissible for many reasons.
First of all, physical concomitants are rarely direct and unmeditated
expressions of a psychical instant (e.g., clenching a fist in threatening).
Generally they stand in no causal relation, so that explanations drawn from
physiological, anatomical, or even atavistic conditions are only approximate
and hypothetical. In addition, accidental habits and inheritances exercise an
influence which, although it does not alter the expression, has a moulding
effect that in the course of time does finally so recast a very natural
expression as to make it altogether unintelligible. The phenomena,
moreover, are in most cases personal, so that each individual means a new
study. Again the phenomena rarely remain constant; e.g.: we call a thing
habit,—we say, “He has the habit of clutching his chin when he is
embarrassed,”—but that such habits change is well known. Furthermore,
purely physiological conditions operate in many directions, (such as
blushing, trembling, laughter,[70] weeping, stuttering, etc.), and finally, very
few men want to show their minds openly to their friends, so that they see
no reason for co-ordinating their symbolic bodily expressions. Nevertheless,
they do so, and not since yesterday, but for thousands of years. Hence
definite expressions have been transmitted for generations and have at the
same time been constantly modified, until to-day they are altogether
unrecognizable. Characteristically, the desire to fool others has also its
predetermined limitations, so that it often happens that simple and
significant gestures contradict words when the latter are false. E. g., you
hear somebody say, “She went down,” but see him point at the same time,
not clearly, but visibly, up. Here the speech was false and the gesture true.
The speaker had to turn all his attention on what he wanted to say so that the
unwatched co-consciousness moved his hand in some degree.
A remarkable case of this kind was that of a suspect of child murder. The
girl told that she had given birth to the child all alone, had washed it, and
then laid it on the bed beside herself. She had also observed how a corner of
the coverlet had fallen on the child’s face, and thought it might interfere
with the child’s breathing. But at this point she swooned, was unable to help

the child, and it was choked. While sobbing and weeping as she was telling
this story, she spread the fingers of her left hand and pressed it on her thigh,
as perhaps she might have done, if she had first put something soft, the
corner of a coverlet possibly, over the child’s nose and mouth, and then
pressed on it. This action was so clearly significant that it inevitably led to
the question whether she hadn’t choked the child in that way. She assented,
sobbing.
Similar is another case in which a man assured us that he lived very
peaceably with his neighbor and at the same time clenched his fist. The
latter meant illwill toward the neighbor while the words did not.
It need not, of course, be urged that the certainty of a belief will be much
endangered if too much value is sanguinely set on such and similar gestures,
when their observation is not easy. There is enough to do in taking
testimony, and enough to observe, to make it difficult to watch gestures too.
Then there is danger (because of slight practice) of easily mistaking
indifferent or habitual gestures for significant ones; of supposing oneself to
have seen more than should have been seen, and of making such
observations too noticeable, in which case the witness immediately controls
his gestures. In short, there are difficulties, but once they are surmounted,
the effort to do so is not regretted.
It is to be recommended here, also, not to begin one’s studies with
murder and robbery, but with the simple cases of the daily life, where there
is no danger of making far-reaching mistakes, and where observations may
be made much more calmly. Gestures are especially powerful habits and
almost everybody makes them, mainly not indifferent ones. It is amusing to
observe a man at the telephone, his free hand making the gestures for both.
He clenches his fist threateningly, stretches one finger after another into the
air if he is counting something, stamps his foot if he is angry, and puts his
finger to his head if he does not understand—in that he behaves as he would
if his interlocutor were before him. Such deep-rooted tendencies to gesture
hardly ever leave us. The movements also occur when we lie; and inasmuch
as a man who is lying at the same time has the idea of the truth either
directly or subconsciously before him, it is conceivable that this idea
exercises much greater influence on gesture than the probably transitory lie.
The question, therefore, is one of intensity, for each gesture requires a
powerful impulse and the more energetic is the one that succeeds in causing
the gesture. According to Herbert Spencer[71] it is a general and important

rule that any sensation which exceeds a definite intensity expresses itself
ordinarily in activity of the body. This fact is the more important for us
inasmuch as we rarely have to deal with light and with not deep-reaching
and superficial sensations. In most cases the sensations in question “exceed
a certain intensity,” so that we are able to perceive a bodily expression at
least in the form of a gesture.
The old English physician, Charles Bell,[72] is of the opinion, in his
cautious way, that what is called the external sign of passion is only the
accompanying phenomenon of that spontaneous movement required by the
structure, or better, by the situation of the body. Later this was demonstrated
by Darwin and his friends to be the indubitable starting point of all
gesticulation:—so, for example, the defensive action upon hearing
something disgusting, the clenching of the fists in anger; or among wild
animals, the baring of the teeth, or the bull’s dropping of the head, etc. In
the course of time the various forms of action became largely unintelligible
and significatory only after long experience. It became, moreover,
differently differentiated with each individual, and hence still more difficult
to understand. How far this differentiation may go when it has endured
generation after generation and is at last crystallized into a set type, is well
known; just as by training the muscles of porters, tumblers or fencers
develop in each individual, so the muscles develop in those portions of our
body most animated by the mind—in our face and hands, especially, have
there occurred through the centuries fixed expressions or types of
movement. This has led to the observations of common-sense which speak
of raw, animal, passionate or modest faces, and of ordinary, nervous, or
spiritual hands; but it has also led to the scientific interpretation of these
phenomena which afterwards went shipwreck in the form of Lombroso’s
“criminal stigmata,” inasmuch as an overhasty theory has been built on
barren, unexperienced, and unstudied material. The notion of criminal
stigmata is, however, in no sense new, and Lombroso has not invented it;
according to an incidental remark of Kant in his “Menschenkunde,” the first
who tried scientifically to interpret these otherwise ancient observations was
the German J. B. Friedreich,[73] who says expressly that determinate
somatic pathological phenomena may be shown to occur with certain moral
perversions. It has been observed with approximate clearness in several
types of cases. So, for example, incendiarism occurs in the case of abnormal
sexual conditions; poisoning also springs from abnormal sexual impulses;

drowning is the consequence of oversatiated drink mania, etc. Modern
psychopathology knows nothing additional concerning these marvels; and
similar matters which are spoken of nowadays again, have shown
themselves incapable of demonstration. But that there are phenomena so
related, and that their number is continually increasing under exact
observations, is not open to doubt.[74] If we stop with the phenomena of
daily life and keep in mind the ever-cited fact that everybody recognizes at a
glance the old hunter, the retired officer, the actor, the aristocratic lady, etc.,
we may go still further: the more trained observers can recognize the
merchant, the official, the butcher, the shoe-maker, the real tramp, the
Greek, the sexual pervert, etc. Hence follows an important law—that if a
fact is once recognized correctly in its coarser form, then the possibility
must be granted that it is correct in its subtler manifestations. The boundary
between what is coarse and what is not may not be drawn at any particular
point. It varies with the skill of the observer, with the character of the
material before him, and with the excellence of his instruments, so that
nobody can say where the possibility of progress in the matter ceases.
Something must be granted in all questions appertaining to this subject of
recognizable unit-characters and every layman pursues daily certain
activities based on their existence. When he speaks of stupid and intelligent
faces he is a physiognomist; he sees that there are intellectual foreheads and
microcephalic ones, and is thus a craniologist; he observes the expression of
fear and of joy, and so observes the principles of imitation; he contemplates
a fine and elegant hand in contrast with a fat and mean hand, and therefore
assents to the effectiveness of chirognomy; he finds one hand-writing
scholarly and fluid, another heavy, ornate and unpleasant; so he is dealing
with the first principles of graphology;—all these observations and
inferences are nowhere denied, and nobody can say where their attainable
boundaries lie.
Hence, the only proper point of view to take is that from which we set
aside as too bold, all daring and undemonstrated assertions on these matters.
But we will equally beware of asserting without further consideration that
far-reaching statements are unjustified, for we shall get very far by the use
of keener and more careful observation, richer material, and better
instruments.
How fine, for example, are the observations made by Herbert Spencer
concerning the importance of the “timbre” of speech in the light of the

emotional state—no one had ever thought of that before, or considered the
possibilities of gaining anything of importance from this single datum
which has since yielded such a rich collection of completely proved and
correctly founded results. Darwin knew well enough to make use of it for
his own purposes.[75] He points out that the person who is quietly
complaining of bad treatment or is suffering a little, almost always speaks in
a high tone of voice; and that deep groans or high and piercing shrieks
indicate extreme pain. Now we lawyers can make just such observations in
great number. Any one of us who has had a few experiences, can
immediately recognize from the tone of voice with which a new comer
makes his requests just about what he wants. The accused, for example, who
by chance does not know why he has been called to court, makes use of a
questioning tone without really pronouncing his question. Anybody who is
seriously wounded, speaks hoarsely and abruptly. The secret tone of voice
of the querulous, and of such people who speak evil of another when they
are only half or not at all convinced of it, gives them away. The voice of a
denying criminal has in hundreds of cases been proved through a large
number of physiological phenomena to do the same thing for him; the
stimulation of the nerves influences before all the characteristic snapping
movement of the mouth which alternates with the reflex tendency to
swallow. In addition it causes lapses in blood pressure and palpitation of the
heart by means of disturbances of the heart action, and this shows clearly
visible palpitation of the right carotid (well within the breadth of hand under
the ear in the middle of the right side of the neck). That the left carotid does
not show the palpitation may be based on the fact that the right stands in
much more direct connection with the aorta. All this, taken together, causes
that so significant, lightly vibrating, cold and toneless voice, which is so
often to be perceived in criminals who deny their guilt. It rarely deceives the
expert.
But these various timbres of the voice especially contain a not
insignificant danger for the criminalist. Whoever once has devoted himself
to the study of them trusts them altogether too easily, for even if he has
identified them correctly hundreds of times, it still may happen that he is
completely deceived by a voice he holds as “characteristically
demonstrative.” That timbres may deceive, or simulations worthy of the
name occur, I hardly believe. Such deceptions are often attempted and
begun, but they demand the entire attention of the person who tries them,

and that can be given for only a short time. In the very instant that the
matter he is speaking of requires the attention of the speaker, his voice
involuntarily falls into that tone demanded by its physical determinants: and
the speaker significantly betrays himself through just this alteration. We
may conclude that an effective simulation is hardly thinkable.
It must, however, be noticed that earlier mistaken observations and
incorrect inference at the present moment—substitutions and similar
mistakes—may easily mislead. As a corroborative fact, then, the judgment
of a voice would have great value; but as a means in itself it is a thing too
little studied and far from confirmed.
There is, however, another aspect of the matter which manifests itself in
an opposite way from voice and gesture. Lazarus calls attention to the fact
that the spectators at a fencing match can not prevent themselves from
imitative accompaniment of the actions of the fencers, and that anybody
who happens to have any swinging object in his hand moves his hand here
and there as they do. Stricker[76] makes similar observations concerning
involuntary movements performed while looking at drilling or marching
soldiers. Many other phenomena of the daily life—as, for example, keeping
step with some pedestrian near us, with the movement of a pitcher who with
all sorts of twistings of his body wants to guide the ball correctly when it
has already long ago left his hand; keeping time to music and accompanying
the rhythm of a wagon knocking on cobblestones; even the enforcement of
what is said through appropriate gestures when people speak vivaciously—
naturally belong to the same class. So do nodding the head in agreement and
shaking it in denial; shrugging the shoulders with a declaration of
ignorance. The expression by word of mouth should have been enough and
have needed no reinforcement through conventional gestures, but the last
are spontaneously involuntary accompaniments.
On the other hand there is the converse fact that the voice may be
influenced through expression and gesture. If we fix an expression on our
features or bring our body into an attitude which involves passional
excitement we may be sure that we will be affected more or less by the
appropriate emotion. This statement, formulated by Maudsley, is perfectly
true and may be proved by anybody at any moment. It presents itself to us
as an effective corroboration of the so well-known phenomenon of “talking-
yourself-into-it.” Suppose you correctly imagine how a very angry man
looks: frowning brow, clenched fists, gritting teeth, hoarse, gasping voice,

and suppose you imitate. Then, even if you feel most harmless and order-
loving, you become quite angry though you keep up the imitation only a
little while. By means of the imitation of lively bodily changes you may in
the same way bring yourself into any conceivable emotional condition, the
outer expressions of which appear energetically. It must have occurred to
every one of us how often prisoners present so well the excitement of
passion that their earnestness is actually believed; as for example, the anger
of a guiltless suspect or of an obviously needy person, of a man financially
ruined by his trusted servant, etc. Such scenes of passion happen daily in
every court-house and they are so excellently presented that even an
experienced judge believes in their reality and tells himself that such a thing
can not be imitated because the imitation is altogether too hard to do and
still harder to maintain. But in reality the presentation is not so wonderful,
and taken altogether, is not at all skilful; whoever wants to manifest anger
must make the proper gestures (and that requires no art) and when he makes
the gestures the necessary conditions occur and these stimulate and cause
the correct manifestation of the later gestures, while these again influence
the voice. Thus without any essential mummery the comedy plays itself out,
self-sufficient, correct, convincing. Alarming oneself is not performed by
words, but by the reciprocal influence of word and gesture, and the power of
that influence is observable in the large number of cases where, in the end,
people themselves believe what they have invented. If they are of delicate
spiritual equilibrium they even become hypochondriacs. Writing, and the
reading of writing, is to be considered in the same way as gesticulation; it
has the same alarming influence on voice and general appearance as the
other, so that it is relatively indifferent whether a man speaks and acts or
writes and thinks. This fact is well known to everybody who has ever in his
life written a really coarse letter.
Now this exciting gesticulation can be very easily observed, but the
observation must not come too late. If the witness is once quite lost in it and
sufficiently excited by the concomitant speeches he will make his gestures
well and naturally and the artificial and untrue will not be discoverable. But
this is not the case in the beginning; then his gestures are actually not
skilful, and at that point a definite force of will and rather notable
exaggerations are observable; the gestures go further than the words, and
that is a matter not difficult to recognize. As soon as the recognition is made
it becomes necessary to examine whether a certain congruity invariably

manifests itself between word and gesture, inasmuch as with many people
the above-mentioned lack of congruity is habitual and honest. This is
particularly the case with people who are somewhat theatrical and hence
gesticulate too much. But if word and gesture soon conform one to another,
especially after a rather lively presentation, you may be certain that the
subject has skilfully worked himself into his alarm or whatever it is he
wanted to manifest. Quite apart from the importance of seeing such a matter
clearly the interest of the work is a rich reward for the labor involved.
In close relation to these phenomena is the change of color to which
unfortunately great importance is often assigned.[77] In this regard paling
has received less general attention because it is more rare and less
suspicious. That it can not be simulated, as is frequently asserted in
discussions of simulation (especially of epilepsy), is not true, inasmuch as
there exists an especial physiological process which succeeds in causing
pallor artificially. In that experiment the chest is very forcibly contracted,
the glottis is closed and the muscles used in inspiration are contracted. This
matter has no practical value for us, on the one hand, because the trick is
always involved with lively and obvious efforts, and on the other, because
cases are hardly thinkable in which a man will produce artificial pallor in
the court where it can not be of any use to him. The one possibility of use is
in the simulation of epilepsy, and in such a case the trick can not be played
because of the necessary falling to the ground.
Paling depends, as is well known, on the cramp of the muscles of the
veins, which contract and so cause a narrowing of their bore which hinders
the flow of blood. But such cramps happen only in cases of considerable
anger, fear, pain, trepidation, rage; in short, in cases of excitement that
nobody ever has reason to simulate. Paling has no value in differentiation
inasmuch as a man might grow pale in the face through fear of being
unmasked or in rage at unjust suspicion.
The same thing is true about blushing.[78] It consists in a sort of
transitory crippling of those nerves that end in the walls of small arteries.
This causes the relaxation of the muscle-fibers of the blood vessels which
are consequently filled in a greater degree with blood. Blushing also may be
voluntarily created by some individuals. In that case the chest is fully
expanded, the glottis is closed and the muscles of expiration are contracted.
But this matter again has no particular value for us since the simulation of a
blush is at most of use only when a woman wants to appear quite modest

and moral. But for that effect artificial blushing does not help, since it
requires such intense effort as to be immediately noticeable. Blushing by
means of external assistance, e.g., inhaling certain chemicals, is a thing
hardly anybody will want to perform before the court.
With regard to guilt or innocence, blushing offers no evidence whatever.
There is a great troop of people who blush without any reason for feeling
guilty. The most instructive thing in this matter is self-observation, and
whoever recalls the cause of his own blushing will value the phenomenon
lightly enough. I myself belonged, not only as a child, but also long after my
student days, to those unfortunates who grow fire-red quite without reason;
I needed only to hear of some shameful deed, of theft, robbery, murder, and
I would get so red that a spectator might believe that I was one of the
criminals. In my native city there was an old maid who had, I knew even as
a boy, remained single because of unrequited love of my grandfather. She
seemed to me a very poetical figure and once when her really magnificent
ugliness was discussed, I took up her cause and declared her to be not so
bad. My taste was laughed at, and since then, whenever this lady or the
street she lives in or even her furs (she used to have pleasure in wearing
costly furs) were spoken of, I would blush. And her age may be estimated
from her calf-love. Now what has occurred to me, often painfully, happens
to numbers of people, and it is hence inconceivable why forensic value is
still frequently assigned to blushing. At the same time there are a few cases
in which blushing may be important.
The matter is interesting even though we know nothing about the
intrinsic inner process which leads to the influence on the nervous
filaments. Blushing occurs all the world over, and its occasion and process
is the same among savages as among us.[79] The same events may be
observed whether we compare the flush of educated or uneducated. There is
the notion, which I believed for a long time, that blushing occurs among
educated people and is especially rare among peasants, but that does not
seem to be true. Working people, especially those who are out in the open a
good deal, have a tougher pigmentation and a browner skin, so that their
flush is less obvious. But it occurs as often and under the same conditions as
among others. It might be said for the same reason that Gypsies never blush;
and of course, that the blush may be rarer among people lacking in shame
and a sense of honor is conceivable. Yet everybody who has much to do
with Gypsies asserts that the blush may be observed among them.

Concerning the relation of the blush to age, Darwin says that early
childhood knows nothing about blushing. It happens in youth more
frequently than in old age, and oftener among women than among men.
Idiots blush seldom, blind people and hereditary albinos, a great deal. The
somatic process of blushing is, as Darwin shows, quite remarkable. Almost
always the blush is preceded by a quick contraction of the eyelids as if to
prevent the rise of the blood in the eyes. After that, in most cases, the eyes
are dropped, even when the cause of blushing is anger or vexation; finally
the blush rises, in most cases irregularly and in spots, at last to cover the
skin uniformly. If you want to save the witness his blush you can do it only
at the beginning—during the movement of the eyes—and only by taking no
notice of it, by not looking at him, and going right on with your remarks.
This incidentally is valuable inasmuch as many people are much confused
by blushing and really do not know what they are talking about while doing
it. There is no third thing which is the cause of the blush and of the
confusion; the blush itself is the cause of the confusion. This may be
indubitably confirmed by anybody who has the agreeable property of
blushing and therefore is of some experience in the matter. I should never
dare to make capital of any statement made during the blush. Friedreich
calls attention to the fact that people who are for the first time subject to the
procedure of the law courts blush and lose color more easily than such as
are accustomed to it, so that the unaccustomed scene also contributes to the
confusion. Meynert[80] states the matter explicitly: “The blush always
depends upon a far-reaching association-process in which the complete
saturation of the contemporaneously-excited nervous elements constricts the
orderly movement of the mental process, inasmuch as here also the
simplicity of contemporaneously-occurring activities of the brain
determines the scope of the function of association.” How convincing this
definition is becomes clear on considering the processes in question. Let us
think of some person accused of a crime to whom the ground of accusation
is presented for the first time, and to whom the judge after that presents the
skilfully constructed proof of his guilt by means of individual bits of
evidence. Now think of the mass of thoughts here excited, even if the
accused is innocent. The deed itself is foreign to him, he must imagine that;
should any relation to it (e.g. presence at the place where the deed was done,
interest in it, ownership of the object, etc.) be present to his mind, he must
become clear concerning this relationship, while at the same time the

possibilities of excuse—alibi, ownership of the thing, etc.—storm upon him.
Then only does he consider the particular reasons of suspicion which he
must, in some degree, incarnate and represent in their dangerous character,
and for each of which he must find a separate excuse. We have here some
several dozens of thought-series, which start their movement at the same
time and through each other. If at that time an especially dangerous apparent
proof is brought, and if the accused, recognizing this danger, blushes with
fear, the examiner thinks: “Now I have caught the rascal, for he’s blushing!
Now let’s go ahead quickly, speed the examination and enter the confused
answer in the protocol!” And who believes the accused when, later on, he
withdraws the “confession” and asserts that he had said the thing because
they had mixed him up?
In this notion, “you blush, therefore you have lied; you did it!” lie many
sins the commission of which is begun at the time of admonishing little
children and ended with obtaining the “confessions” of the murderous thief.
Finally, it is not to be forgotten that there are cases of blushing which
have nothing to do with psychical processes. Ludwig Meyer[81] calls it
“artificial blushing” (better, “mechanically developed blushing”), and
narrates the case of “easily-irritated women who could develop a blush with
the least touch of friction, e.g., of the face on a pillow, rubbing with the
hand, etc.; and this blush could not be distinguished from the ordinary
blush.” We may easily consider that such lightly irritable women may be
accused, come before the court without being recognized as such, and, for
example, cover their faces with their hands and blush. Then the thing might
be called “evidential.”
Section 12. (b) General Signs of Character.

Friedrich Gerstäcker, in one of his most delightful moods, says
somewhere that the best characteristicon of a man is how he wears his hat.
If he wears it perpendicular, he is honest, pedantic, and boresome. If he
wears it tipped slightly, he belongs to the best and most interesting people,
is nimble-witted and pleasant. A deeply tipped hat indicates frivolity and
obstinate imperious nature. A hat worn on the back of the head signifies
improvidence, easiness, conceit, sensuality and extravagance; the farther
back the more dangerous is the position of the wearer. The man who presses
his hat against his temples complains, is melancholy, and in a bad way. It is
now many years since I have read this exposition by the much-traveled and

experienced author, and I have thought countless times how right he was,
but also, how there may be numberless similar marks of recognition which
show as much as the manner of wearing a hat. There are plenty of similar
expositions to be known; one man seeks to recognize the nature of others by
their manner of wearing and using shoes; the other by the manipulation of
an umbrella; and the prudent mother advises her son how the candidate for
bride behaves toward a groom lying on the floor, or how she eats cheese—
the extravagant one cuts the rind away thick, the miserly one eats the rind,
the right one cuts the rind away thin and carefully. Many people judge
families, hotel guests, and inhabitants of a city, and not without reason,
according to the comfort and cleanliness of their privies.
Lazarus has rightly called to mind what is told by the pious Chr. von
Schmidt, concerning the clever boy who lies under a tree and recognizes the
condition of every passer-by according to what he says. “What fine
lumber,”—“Good-morning, carpenter,”—“What magnificent
bark,”—“Good-morning, tanner,”—“What beautiful branches,”—“Good-
morning, painter.” This significant story shows us how easy it is with a little
observation to perceive things that might otherwise have been hidden. With
what subtle clearness it shows how effective is the egoism which makes
each man first of all, and in most cases exclusively, perceive what most
concerns him as most prominent! And in addition men so eagerly and often
present us the chance for the deepest insight into their souls that we need
only to open our eyes—seeing and interpreting is so childishly easy! Each
one of us experiences almost daily the most instructive things; e.g. through
the window of my study I could look into a great garden in which a house
was being built; when the carpenters left in the evening they put two blocks
at the entrance and put a board on them crosswise. Later there came each
evening a gang of youngsters who found in this place a welcome
playground. That obstruction which they had to pass gave me an
opportunity to notice the expression of their characters. One ran quickly and
jumped easily over,—that one will progress easily and quickly in his life.
Another approached carefully, climbed slowly up the board and as
cautiously descended on the other side—careful, thoughtful, and certain.
The third climbed up and jumped down—a deed purposeless, incidental,
uninforming. The fourth ran energetically to the obstruction, then stopped
and crawled boldly underneath—disgusting boy who nevertheless will have
carried his job ahead. Then, again, there came a fifth who jumped,—but too

low, remained hanging and tumbled; he got up, rubbed his knee, went back,
ran again and came over magnificently—and how magnificently will he
achieve all things in life, for he has will, fearlessness, and courageous
endurance!—he can’t sink. Finally a sixth came storming along—one step,
and board and blocks fell together crashing, but he proudly ran over the
obstruction, and those who came behind him made use of the open way. He
is of the people who go through life as path-finders; we get our great men
from among such.
Well, all this is just a game, and no one would dare to draw conclusions
concerning our so serious work from such observations merely. But they
can have a corroborative value if they are well done, when large numbers,
and not an isolated few, are brought together, and when appropriate
analogies are brought from appropriate cases. Such studies, which have to
be sought in the daily life itself, permit easy development; if observations
have been clearly made, correctly apprehended, and if, especially, the
proper notions have been drawn from them, they are easily to be observed,
stick in the memory, and come willingly at the right moment. But they must
then serve only as indices, they must only suggest: “perhaps the case is the
same to-day.” And that means a good deal; a point of view for the taking of
evidence is established, not, of course, proof as such, or a bit of evidence,
but a way of receiving it,—perhaps a false one. But if one proceeds
carefully along this way, it shows its falseness immediately, and another
presented by memory shows us another way that is perhaps correct.
The most important thing in this matter is to get a general view of the
human specimen—and incidentally, nobody needs more to do this than the
criminalist. For most of us the person before us is only “A, suspected of x.”
But our man is rather more than that, and especially he was rather more
before he became “A suspected of x.” Hence, the greatest mistake, and,
unfortunately, the commonest, committed by the judge, is his failure to
discuss with the prisoner his more or less necessary earlier life. Is it not
known that every deed is an outcome of the total character of the doer? Is it
not considered that deed and character are correlative concepts, and that the
character by means of which the deed is to be established cannot be inferred
from the deed alone? “Crime is the product of the physiologically grounded
psyche of the criminal and his environing external conditions.” (Liszt). Each
particular deed is thinkable only when a determinate character of the doer is
brought in relation with it—a certain character predisposes to determinate

deeds, another character makes them unthinkable and unrelatable with this
or that person. But who thinks to know the character of a man without
knowing his view of the world, and who talks of their world-views with his
criminals? “Whoever wants to learn to know men,” says Hippel,[82] “must
judge them according to their wishes,” and it is the opinion of Struve:[83] “A
man’s belief indicates his purpose.” But who of us asks his criminals about
their wishes and beliefs?
If we grant the correctness of what we have said we gain the conviction
that we can proceed with approximate certainty and conscientiousness only
if we speak with the criminal, not alone concerning the deed immediately in
question, but also searchingly concerning the important conditions of his
inner life. So we may as far as possible see clearly what he is according to
general notions and his particular relationships.
The same thing must also be done with regard to an important witness,
especially when much depends upon his way of judging, of experiencing, of
feeling, and of thinking, and when it is impossible to discover these things
otherwise. Of course such analyses are often tiring and without result, but
that, on the other hand, they lay open with few words whole broadsides of
physical conditions, so that we need no longer doubt, is also a matter of
course. Who wants to leave unused a formula of Schopenhauer’s: “We
discover what we are through what we do?” Nothing is easier than to
discover from some person important to us what he does, even though the
discovery develops merely as a simple conversation about what he has done
until now and what he did lately. And up to date we have gotten at such
courses of life only in the great cases; in cases of murder or important
political criminals, and then only at externals; we have cared little about the
essential deeds, the smaller forms of activity which are always the
significant ones. Suppose we allow some man to speak about others, no
matter whom, on condition that he must know them well. He judges their
deeds, praises and condemns them, and thinks that he is talking about them
but is really talking about himself alone, for in each judgment of the others
he aims to justify and enhance himself; the things he praises he does, what
he finds fault with, he does not; or at least he wishes people to believe that
he does the former and avoids the latter. And when he speaks unpleasantly
about his friends he has simply abandoned what he formerly had in common
with them. Then again he scolds at those who have gotten on and blames
their evil nature for it; but whoever looks more closely may perceive that he

had no gain in the same evil and therefore dislikes it. At the same time, he
cannot possibly suppress what he wishes and what he needs. Now, whoever
knows this fact, knows his motives, and to decide in view of these with
regard to a crime is seldom difficult. “Nos besoins sont nos forces”—but
superficial needs do not really excite us while what is an actual need does.
Once we are compelled, our power to achieve what we want grows
astoundingly. How we wonder at the great amount of power used up, in the
case of many criminals! If we know that a real need was behind the crime,
we need no longer wonder at the magnitude of the power. The relation
between the crime and the criminal is defined because we have discovered
his needs. To these needs a man’s pleasures belong also; every man, until
the practically complete loss of vigor, has as a rule a very obvious need for
some kind of pleasure. It is human nature not to be continuously a machine,
to require relief and pleasure.

The word pleasure must of course be used in the loosest way, for one
man finds his pleasure in sitting beside the stove or in the shadow, while
another speaks of pleasure only when he can bring some change in his
work. I consider it impossible not to understand a man whose pleasures are
known; his will, his power, his striving and knowing, feeling and perceiving
cannot be made clearer by any other thing. Moreover, it happens that it is a
man’s pleasures which bring him into court, and as he resists or falls into
them he reveals his character. The famous author of the “Imitation of
Christ,” Thomas à Kempis, whose book is, saving the Bible, the most wide-
spread on earth, says: “Occasiones hominem fragilem non faciunt, sed,
qualis sit, ostendunt.” That is a golden maxim for the criminalist.
Opportunity, the chance to taste, is close to every man, countless times; is
his greatest danger; for that reason it was great wisdom in the Bible that
called the devil, the Tempter. A man’s behavior with regard to the
discovered or sought-out opportunity exhibits his character wholly and
completely. But the chance to observe men face to face with opportunity is
a rare one, and that falling-off with which we are concerned is often the
outcome of such an opportunity. But at this point we ought not longer to
learn, but to know; and hence our duty to study the pleasures of men, to
know how they behave in the presence of their opportunities.
There is another group of conditions through which you may observe
and judge men in general. The most important one is to know yourself as
well as possible, for accurate self-knowledge leads to deep mistrust with
regard to others, and only the man suspicious with regard to others is
insured, at least a little, against mistakes. To pass from mistrust to the
reception of something good is not difficult, even in cases where the
mistrust is well-founded and the presupposition of excellent motives among
our fellows is strongly fought. Nevertheless, when something actually good
is perceivable, one is convinced by it and even made happy. But the
converse is not true, for anybody who is too trusting easily presupposes the
best at every opportunity, though he may have been deceived a thousand
times and is now deceived again. How it happens that self-knowledge leads
to suspicion of others we had better not investigate too closely—it is a fact.
Every man is characterized by the way he behaves in regard to his
promises. I do not mean keeping or breaking a promise, because nobody
doubts that the honest man keeps it and the scoundrel does not. I mean the
manner in which a promise is kept and the degree in which it is kept. La

Roche-Foucauld[84] says significantly: “We promise according to our hopes,
and perform according to our fears.” When in any given case promising and
hopes and performance and fears are compared, important considerations
arise,—especially in cases of complicity in crime.
When it is at all possible, and in most cases it is, one ought to concern
oneself with a man’s style,—the handwriting of his soul. What this consists
of cannot be expressed in a definite way. The style must simply be studied
and tested with regard to its capacity for being united with certain
presupposed qualities. Everybody knows that education, bringing-up, and
intelligence are indubitably expressed in style, but it may also be observed
that style clearly expresses softness or hardness of a character, kindness or
cruelty, determination or weakness, integrity or carelessness, and hundreds
of other qualities. Generally the purpose of studying style may be achieved
by keeping in mind some definite quality presupposed and by asking
oneself, while reading the manuscript of the person in question, whether
this quality fuses with the manuscript’s form and with the individual
tendencies and relationships that occur in the construction of the thought.
One reading will of course not bring you far, but if the reading is repeated
and taken up anew, especially as often as the writer is met with or as often
as some new fact about him is established, then it is almost impossible not
to attain a fixed and valuable result. One gets then significantly the sudden
impression that the thing to be proved, having the expression of which the
properties are to be established, rises out of the manuscript; and when that
happens the time has come not to dawdle with the work. Repeated reading
causes the picture above-mentioned to come out more clearly and sharply; it
is soon seen in what places or directions of the manuscript that expression
comes to light—these places are grouped together, others are sought that
more or less imply it, and soon a standpoint for further consideration is
reached which naturally is not evidential by itself, but has, when combined
with numberless others, corroborative value.
Certain small apparently indifferent qualities and habits are important.
There are altogether too many of them to talk about; but there are examples
enough of the significance of what is said of a man in this fashion: “this
man is never late,” “this man never forgets,” “this man invariably carries a
pencil or a pocket knife,” “this one is always perfumed,” “this one always
wears clean, carefully brushed clothes,”—whoever has the least training
may construct out of such qualities the whole inner life of the individual.

Such observations may often be learned from simple people, especially
from old peasants. A great many years ago I had a case which concerned a
disappearance. It was supposed that the lost man was murdered. Various
examinations were made without result, until, finally, I questioned an old
and very intelligent peasant who had known well the lost man. I asked the
witness to describe the nature of his friend very accurately, in order that I
might draw from his qualities, habits, etc., my inferences concerning his
tendencies, and hence concerning his possible location. The old peasant
supposed that everything had been said about the man in question when he
explained that he was a person who never owned a decent tool. This was an
excellent description, the value of which I completely understood only
when the murdered man came to life and I learned to know him. He was a
petty lumberman who used to buy small wooded tracts in the high
mountains for cutting, and having cut them down would either bring the
wood down to the valley, or have it turned to charcoal. In the fact that he
never owned a decent tool, nor had one for his men, was established his
whole narrow point of view, his cramped miserliness, his disgusting
prudence, his constricted kindliness, qualities which permitted his men to
plague themselves uselessly with bad tools and which justified altogether
his lack of skill in the purchase of tools. So I thought how the few words of
the old, much-experienced peasant were confirmed utterly—they told the
whole story. Such men, indeed, who say little but say it effectively, must be
carefully attended to, and everything must be done to develop and to
understand what they mean.
But the judge requires attention and appropriate conservation of his own
observations. Whoever observes the people he deals with soon notices that
there is probably not one among them that does not possess some similar,
apparently unessential quality like that mentioned above. Among close
acquaintances there is little difficulty in establishing which of their
characteristics belong to that quality, and when series of such observations
are brought together it is not difficult to generalize and to abstract from
them specific rules. Then, in case of need, when the work is important, one
makes use of the appropriate rule with pleasure, and I might say, with
thanks for one’s own efforts.
One essential and often useful symbol to show what a man makes of
himself, what he counts himself for, is his use of the word we.
Hartenstein[85] has already called attention to the importance of this

circumstance, and Volkmar says: “The we has a very various scope, from
the point of an accidental simultaneity of images in the same sensation,
representation or thought, to the almost complete circle of the family we
which breaks through the I and even does not exclude the most powerful
antagonisms; hatred, just like love, asserts its we.” What is characteristic in
the word we is the opposition of a larger or smaller group of which the I is a
member, to the rest of the universe. I say we when I mean merely my wife
and myself, the inhabitants of my house, my family, those who live in my
street, in my ward, or in my city; I say we assessors, we central-Austrians,
we Austrians, we Germans, we Europeans, we inhabitants of the earth. I say
we lawyers, we blonds, we Christians, we mammals, we collaborators on a
monthly, we old students’ society, we married men, we opponents of jury
trial. But I also say we when speaking of accidental relations, such as being
on the same train, meeting on the same mountain peak, in the same hotel, at
the same concert, etc. In a word we defines all relationships from the
narrowest and most important, most essential, to the most individual and
accidental. Conceivably the we unites also people who have something evil
in common, who use it a great deal among themselves, and because of
habit, in places where they would rather not have done so. Therefore, if you
pay attention you may hear some suspect who denies his guilt, come out
with a we which confesses his alliance with people who do the things he
claims not to: we pickpockets, we house-breakers, we gamblers, inverts, etc.
It is so conceivable that man as a social animal seeks companionship in
so many directions that he feels better protected when he has a comrade,
when he can present in the place of his weak and unprotected I the stronger
and bolder we; and hence the considerable and varied use of the word. No
one means that people are to be caught with the word; it is merely to be
used to bring clearness into our work. Like every other honest instrument, it
is an index to the place of the man before us.
Section 13. (c) Particular Character-signs.

It is a mistake to suppose that it is enough in most cases to study that
side of a man which is at the moment important—his dishonesty only, his
laziness, etc. That will naturally lead to merely one-sided judgment and
anyway be much harder than keeping the whole man in eye and studying
him as an entirety. Every individual quality is merely a symptom of a whole
nature, can be explained only by the whole complex, and the good

properties depend as much on the bad ones as the bad on the good ones. At
the very least the quality and quantity of a good or bad characteristic shows
the influence of all the other good and bad characteristics. Kindliness is
influenced and partly created through weakness, indetermination, too great
susceptibility, a minimum acuteness, false constructiveness, untrained
capacity for inference; in the same way, again, the most cruel hardness
depends on properties which, taken in themselves, are good: determination,
energy, purposeful action, clear conception of one’s fellows, healthy
egotism, etc. Every man is the result of his nature and nurture, i.e. of
countless individual conditions, and every one of his expressions, again, is
the result of all of these conditions. If, therefore, he is to be judged, he must
be judged in the light of them all.
For this reason, all those indications that show us the man as a whole are
for us the most important, but also those others are valuable which show
him up on one side only. In the latter case, however, they are to be
considered only as an index which never relieves us from the need further
to study the nature of our subject. The number of such individual
indications is legion and no one is able to count them up and ground them,
but examples of them may be indicated.
We ask, for example, what kind of man will give us the best and most
reliable information about the conduct and activity, the nature and character,
of an individual? We are told: that sort of person who is usually asked for
the information—his nearest friends and acquaintances, and the authorities.
Before all of these nobody shows himself as he is, because the most honest
man will show himself before people in whose judgment he has an interest
at least as good as, if not better than he is—that is fundamental to the
general egoistic essence of humanity, which seeks at least to avoid reducing
its present welfare. Authorities who are asked to make a statement
concerning any person, can say reliably only how often the man was
punished or came otherwise in contact with the law or themselves. But
concerning his social characteristics the authorities have nothing to say;
they have got to investigate them and the detectives have to bring an
answer. Then the detectives are, at most, simply people who have had the
opportunity to watch and interrogate the individuals in question,—the
servants, house-furnishers, porters, corner-loafers, etc. Why we do not
question the latter ourselves I cannot say; if we did we might know these
people on whom we depend for important information and might put our

questions according to the answers that we need. It is a purely negative
thing that an official declaration is nowadays not unfrequently presented to
us in the disgusting form of the gossip of an old hag. But in itself the form
of getting information about people through servants and others of the same
class is correct. One has, however, to beware that it is not done simply
because the gossips are most easily found, but because people show their
weaknesses most readily before those whom they hold of no account. The
latter fact is well known, but not sufficiently studied. It is of considerable
importance. Let us then examine it more closely: Nobody is ashamed to
show himself before an animal as he is, to do an evil thing, to commit a
crime; the shame will increase very little if instead of the animal a complete
idiot is present, and if now we suppose the intelligence and significance of
this witness steadily to increase, the shame of appearing before him as one
is increases in a like degree. So we will control ourselves most before
people whose judgment is of most importance to us. The Styrian, Peter
Rosegger, one of the best students of mankind, once told a first-rate story of
how the most ultimate secrets of certain people became common talk
although all concerned assured him that nobody had succeeded in getting
knowledge of them. The news-agent was finally discovered in the person of
an old, humpy, quiet, woman, who worked by the day in various homes and
had found a place, unobserved and apparently indifferent, in the corner of
the sitting-room. Nobody had told her any secrets, but things were allowed
to occur before her from which she might guess and put them together.
Nobody had watched this disinterested, ancient lady; she worked like a
machine; her thoughts, when she noted a quarrel or anxiety or disagreement
or joy, were indifferent to all concerned, and so she discovered a great deal
that was kept secret from more important persons. This simple story is very
significant—we are not to pay attention to gossips but to keep in mind that
the information of persons is in the rule more important and more reliable
when the question under consideration is indifferent to them than when it is
important. We need only glance at our own situation in this matter—what
do we know about our servants? What their Christian names are, because
we have to call them; where they come from, because we hear their
pronunciation; how old they are, because we see them; and those of their
qualities that we make use of. But what do we know of their family
relationships, their past, their plans, their joys or sorrows? The lady of the
house knows perhaps a little more because of her daily intercourse with

them, but her husband learns of it only in exceptional cases when he bothers
about things that are none of his business. Nor does madam know much, as
examination shows us daily. But what on the other hand do the servants
know about us? The relation between husband and wife, the bringing-up of
the children, the financial situation, the relation with cousins, the house-
friends, the especial pleasures, each joy, each trouble that occurs, each hope,
everything from the least bodily pain to the very simplest secret of the
toilette—they know it all. What can be kept from them? The most restricted
of them are aware of it, and if they do not see more, it is not because of our
skill at hiding, but because of their stupidity. We observe that in these cases
there is not much that can be kept secret and hence do not trouble to do so.
There is besides another reason for allowing subordinate or indifferent
people to see one’s weaknesses. The reason is that we hate those who are
witnesses of a great weakness. Partly it is shame, partly vexation at oneself,
partly pure egoism, but it is a fact that one’s anger turns instinctively upon
those who have observed one’s degradation through one’s own weakness.
This is so frequently the case that the witness is to be the more relied on the
more the accused would seem to have preferred that the witness had not
seen him. Insignificant people are not taken as real witnesses; they were
there but they haven’t perceived anything; and by the time it comes to light
that they see at least as well as anybody else, it is too late. One will not go
far wrong in explaining the situation with the much varied epigram of
Tacitus: “Figulus odit figulum.” It is, at least, through business-jealousy that
one porter hates another, and the reason for it lies in the fact that two of a
trade know each other’s weaknesses, that one always knows how the other
tries to hide his lack of knowledge, how deceitful fundamentally every
human activity is, and how much trouble everybody takes to make his own
trade appear to the other as fine as possible. If you know, however, that your
neighbor is as wise as you are, the latter becomes a troublesome witness in
any disagreeable matter, and if he is often thought of in this way, he comes
to be hated. Hence you must never be more cautious than when one
“figulus” gives evidence about another. Esprit de corps and jealousy pull
the truth with frightful force, this way and that, and the picture becomes the
more distorted because so-called esprit de corps is nothing more than
generalized selfishness. Kant[86] is not saying enough when he says that the
egoist is a person who always tries to push his own I forward and to make it
the chief object of his own and of everybody else’s attention. For the person

who merely seeks attention is only conceited; the egoist, however, seeks his
own advantage alone, even at the cost of other people, and when he shows
esprit de corps he desires the advantage of his corps because he also has a
share in that. In this sense one of a trade has much to say about his fellow
craftsmen, but because of jealousy, says too little—in what direction,
however, he is most likely to turn depends on the nature of the case and the
character of the witness.
In most instances it will be possible to make certain distinctions as to
when objectively too much and subjectively too little is said. That is to say,
the craftsman will exaggerate with regard to all general questions, but with
regard to his special fellow jealousy will establish her rights. An absolute
distinction may never be drawn, not even subjectively. Suppose that A has
something to say about his fellow craftsman B, and suppose that certain
achievements of B are to be valued. If now A has been working in the same
field as B he must not depreciate too much the value of B’s work, since
otherwise his own work is in danger of the same low valuation. Objectively
the converse is true: for if A bulls the general efficiency of his trade, it
doesn’t serve his conceit, since we find simply that the competitor is in this
way given too high a value. It would be inadvisable to give particular
examples from special trades, but everybody who has before him one
“figulus” after another, from the lowest to the highest professions, and who
considers the statements they make about each other, will grant the
correctness of our contention. I do not, at this point, either, assert that the
matter is the same in each and every case, but that it is generally so is
indubitable.
There is still another thing to be observed. A good many people who are
especially efficient in their trades desire to be known as especially efficient
in some other and remote circle. It is historic that a certain regent was
happy when his very modest flute-playing was praised; a poet was pleased
when his miserable drawings were admired; a marshal wanted to hear no
praise of his victories but much of his very doubtful declamation. The case
is the same among lesser men. A craftsman wants to shine with some
foolishness in another craft, and “the philistine is happiest when he is
considered a devil of a fellow.” The importance of this fact lies in the
possibility of error in conclusions drawn from what the subject himself tries
to present about his knowledge and power. With regard to the past it leads
even fundamentally honest persons to deception and lying.

So for example a student who might have been the most solid and
harmless in his class later makes suggestions that he was the wildest sport;
the artist who tried to make his way during his cubhood most bravely with
the hard-earned money of his mother is glad to have it known that he was
guilty as a young man of unmitigated nonsense; and the ancient dame who
was once the most modest of girls is tickled with the flattery of a story
concerning her magnificent flirtations. When such a matter is important for
us it must be received with great caution.
To this class of people who want to appear rather more interesting than
they are, either in their past or present, belong also those who declare that
everything is possible and who have led many a judge into vexatious
mistakes. This happens especially when an accused person tries to explain
away the suspicions against him by daring statements concerning his great
achievements (e.g.: in going back to a certain place, or his feats of strength,
etc.), and when witnesses are asked if these are conceivable. One gets the
impression in these cases that the witnesses under consideration suppose
that they belittle themselves and their point of view if they think anything to
be impossible. They are easily recognized. They belong to the worst class of
promoters and inventors or their relations. If a man is studying how to pay
the national debt or to solve the social question or to irrigate Sahara, or is
inclined to discover a dirigible air-ship, a perpetual-motion machine, or a
panacea, or if he shows sympathy for people so inclined, he is likely to
consider everything possible—and men of this sort are surprisingly
numerous. They do not, as a rule, carry their plans about in public, and
hence have the status of prudent persons, but they betray themselves by
their propensity for the impossible in all conceivable directions. If a man is
suspected to be one of them, and the matter is important enough, he may be
brought during the conversation to talk about some project or invention. He
will then show how his class begins to deal with it, with what I might call a
suspicious warmth. By that token you know the class. They belong to that
large group of people who, without being abnormal, still have passed the
line which divides the perfectly trustworthy from those unreliable persons
who, with the best inclination to tell the truth, can render it only as it is
distorted by their clouded minds.
These people are not to be confused with those specific men of power
who, in the attempt to show what they can do, go further than in truth they
should. There are indeed persons of talent who are efficient, and know it,

whether for good or evil, and they happen to belong both to the class of the
accused and of the witness. The former show this quality in confessing to
more than they are guilty of, or tell their story in such a way as to more
clearly demonstrate both their power and their conceit. So that it may
happen that a man takes upon himself a crime that he shares with three
accomplices or that he describes a simple larceny as one in which force had
to be used with regard to its object and even with regard to the object’s
owner; or perhaps he describes his flight or his opponents’ as much more
troublesome than these actually were or need have been. The witness
behaves in a similar fashion and shows his defense against an attack for
example, or his skill in discovery of his goods, or his detection of the
criminal in a much brighter light than really belongs to it; he even may
describe situations that were superfluous in order to show what he can do.
In this way the simplest fact is often distorted. As suspects such people are
particularly difficult to deal with. Aside from the fact that they do more and
actually have done more than was necessary, they become unmanageable
and hard-mouthed through unjust accusations. Concerning these people the
statement made a hundred years ago by Ben David[87] still holds:
“Persecution turns wise people raw and foolish, and kindly and well
disposed ones cruel and evil-intentioned.” There are often well disposed
natures who, after troubles, express themselves in the manner described. It
very frequently happens that suspects, especially those under arrest, alter
completely in the course of time, become sullen, coarse, passionate, ill-
natured, show themselves defiant and resentful to even the best-willed
approach, and exhibit even a kind of courage in not offering any defense
and in keeping silent. Such phenomena require the most obvious caution,
for one is now dealing apparently with powerful fellows who have received
injustice. Whether they are quite guiltless, whether they are being
improperly dealt with, or for whatever reason the proper approach has not
been made, we must go back, to proceed in another fashion, and absolutely
keep in mind the possibility of their being innocent in spite of serious
evidence against them.
These people are mainly recognizable by their mode of life, their
habitual appearance, and its expression. Once that is known their conduct in
court is known. In the matter of individual features of character, the form of
life, the way of doing things is especially to be observed. Many an effort,
many a quality can be explained in no other way. The simple declaration of

Volkmar, “There are some things that we want only because we had them
once,” explains to the criminalist long series of phenomena that might
otherwise have remained unintelligible. Many a larceny, robbery, possibly
murder, many a crime springing from jealousy, many sexual offenses
become intelligible when one learns that the criminal had at one time
possessed the object for the sake of which he committed the crime, and
having lost it had tried with irresistible vigor to regain it. What is
extraordinary in the matter is the fact that considerable time passes between
the loss and the desire for recovery. It seems as if the isolated moments of
desire sum themselves up in the course of time and then break out as the
crime. In such cases the explaining motive of the deed is never to be found
except in the criminal’s past.
The same relationship exists in the cases of countless criminals whose
crimes seem at bottom due to apparently inconceivable brutality. In all such
cases, especially when the facts do not otherwise make apparent the
possible guilt of the suspect, the story of the crime’s development has to be
studied. Gustav Struve asserts that it is demonstrable that young men
become surgeons out of pure cruelty, out of desire to see people suffer pain
and to cause pain. A student of pharmacy became a hangman for the same
reason and a rich Dutchman paid the butchers for allowing him to kill oxen.
If, then, one is dealing with a crime which points to extraordinary cruelty,
how can one be certain about its motive and history without knowing the
history of the criminal?
This is the more necessary inasmuch as we may be easily deceived
through apparent motives. “Inasmuch as in most capital crimes two or more
motives work together, an ostensible and a concealed one,” says Kraus,[88]
“each criminal has at his command apparent motives which encourage the
crime.” We know well enough how frequently the thief excuses himself on
the ground of his need, how the criminal wants to appear as merely acting
in self-defense during robberies, and how often the sensualist, even when he
has misbehaved with a little child, still asserts that the child had seduced
him. In murder cases even, when the murderer has confessed, we frequently
find that he tries to excuse himself. The woman who poisons her husband,
really because she wants to marry another, tells her story in such a way as to
make it appear that she killed him because he was extraordinarily bad and
that her deed simply freed the world of a disgusting object. As a rule the
psychological aspect of such cases is made more difficult, by the reason that

the subject has in a greater or lesser degree convinced himself of the truth
of his statements and finally believes his reasons for excuse altogether or in
part. And if a man believes what he says, the proof that the story is false is
much harder to make, because psychological arguments that might be used
to prove falsehood are then of no use. This is an important fact which
compels us to draw a sharp line between a person who is obviously lying
and one who does believe what he says. We have to discover the difference,
inasmuch as the self-developed conviction of the truth of a story is never so
deep rooted as the real conviction of truth. For that reason, the person who
has convinced himself of his truth artificially, watches all doubts and
objections with much greater care than a man who has no doubt whatever in
what he says. The former, moreover, does not have a good conscience, and
the proverb says truly, “a bad conscience has a fine ear.” The man knows
that he is not dealing correctly with the thing and hence he observes all
objections, and the fact that he does so observe, can not be easily
overlooked by the examining officer.
Once this fine hearing distinguishes the individual who really believes in
the motive he plausibly offers the court, there is another indication
(obviously quite apart from the general signs of deceit) that marks him
further, and this comes to light when one has him speak about similar
crimes of others in which the ostensible motive actually was present. It is
said rightly, that not he is old who no longer commits youthful follies but he
that no longer forgives them, and so not merely he is bad who himself
commits evil but also he who excuses them in others. Of course, that an
accused person should defend the naked deed as it is described in the
criminal law is not likely for conceivable reasons—since certainly no
robbery-suspect will sing a paean about robbers, but certainly almost
anybody who has a better or a better-appearing motive for his crime, will
protect those who have been guided by a similar motive in other cases.
Every experiment shows this to be the case and then apparent motives are
easily enough recognized as such.
(d) Somatic Character-Units.
Section 14. (1) General Considerations.

When we say that the inner condition of men implies some outer
expression, it must follow that there are series of phenomena which
especially mold the body in terms of the influence of a state of mind on

external appearance, or conversely, which are significant of the influence of
some physical uniqueness on the psychical state, or of some other psycho
physical condition. As an example of the first kind one may cite the well
known phenomenon that devotees always make an impression rather
specifically feminine. As an example of the second kind is the fact
demonstrated by Gyurkovechky[89] that impotents exhibit disagreeable
characteristics. Such conditions find their universalizing expression in the
cruel but true maxim “Beware of the marked one.” The Bible was the first
of all to make mention of these evil stigmata. No one of course asserts that
the bearer of any bodily malformation is for that reason invested with one
or more evil qualities—“Non cum hoc, sed propter hoc.” It is a general
quality of the untrained, and hence the majority of men, that they shall greet
the unfortunate who suffers from some bodily malformation not with care
and protection, but with scorn and maltreatment. Such propensities belong,
alas, not only to adults, but also to children, who annoy their deformed
playfellows (whether expressly or whether because they are inconsiderate),
and continually call the unhappy child’s attention to his deformity. Hence,
there follows in most cases from earliest youth, at first a certain bitterness,
then envy, unkindness, stifled rage against the fortunate, joy in destruction,
and all the other hateful similar qualities however they may be named. In
the course of time all of these retained bitter impressions summate, and the
qualities arising from them become more acute, become habitual, and at last
you have a ready-made person “marked for evil.” Add to this the
indubitable fact that the marked persons are considerably wiser and better-
instructed than the others. Whether this is so by accident or is causally
established is difficult to say; but inasmuch as most of them are compelled
just by their deformities to deprive themselves of all common pleasures and
to concern themselves with their own affairs, once they have been fed to
satiety with abuse, scorn and heckling, the latter is the more likely. Under
such circumstances they have to think more, they learn more than the others
to train their wits, largely as means of defense against physical attack. They
often succeed by wit, but then, they can never be brought into a state of
good temper and lovableness when they are required to defend themselves
by means of sharp, biting and destructive wit. Moreover, if the deformed is
naturally not well-disposed, other dormant evil tendencies develop in him,
which might never have realized themselves if he had had no need of them
for purposes of self-defense—lying, slander, intrigue, persecution by means

of unpermitted instruments, etc. All this finally forms a determinate
complex of phenomena which is undivorceably bound in the eyes of the
expert with every species of deformity: the mistrusting of the deaf man, the
menacing expression of the blind, the indescribable and therefore extremely
characteristic smiling of the hump-back are not the only typical phenomena
of this kind.
All this is popularly known and is abnormally believed in, so that we
often discover that the deformed are more frequently suspected of crime
than normal people. Suspicion turns to them especially when an unknown
criminal has committed a crime the accomplishment of which required a
particularly evil nature and where the deed of itself called forth general
indignation. In that case, once a deformed person is suspected, grounds of
suspicion are not difficult to find; a few collect more as a rolling ball does
snow. After that the sweet proverb: “Vox populi, vox dei,” drives the
unfortunate fellow into a chaos of evidential grounds of suspicion which
may all be reduced to the fact that he has red hair or a hump. Such events
are frightfully frequent.[90]
Section 15. (2) Causes of Irritation.

Just as important as these phenomena are the somatic results of psychic
irritation. These latter clear up processes not to be explained by words alone
and often over-valued and falsely interpreted. Irritations are important for
two reasons: (1) as causes of crime, and (2) as signs of identification in
examination.
In regard to the first it is not necessary to show what crimes are
committed because of anger, jealousy, or rage, and how frequently terror
and fear lead to extremes otherwise inexplicable—these facts are partly so
well known, partly so very numerous and various, that an exposition would
be either superfluous or impossible. Only those phenomena will be
indicated which lie to some degree on the borderland of the observed and
hence may be overlooked. To this class belong, for example, anger against
the object, which serves as explanation of a group of so-called malicious
damages, such as arson, etc. Everybody, even though not particularly lively,
remembers instances in which he fell into great and inexplicable rage
against an object when the latter set in his way some special difficulties or
caused him pain; and he remembers how he created considerable ease for
himself by flinging it aside, tearing it or smashing it to pieces. When I was a

student I owned a very old, thick Latin lexicon, “Kirschii cornu copia,”
bound in wood covered with pig-skin. This respectable book flew to the
ground whenever its master was vexed, and never failed profoundly to
reduce the inner stress. This “Kirschius” was inherited from my great-
grandfather and it did not suffer much damage. When, however, some poor
apprentice tears the fence, on a nail of which his only coat got a bad tear, or
when a young peasant kills the dog that barks at him menacingly and tries
to get at his calf, then we come along with our “damages according to so
and so much,” and the fellow hasn’t done any more than I have with my
“Kirschius.”[91] In the magnificent novel, “Auch Einer,” by F. T. Vischer,
there is an excellent portrait of the perversity of things; the author asserts
that things rather frequently hold ecumenical councils with the devil for the
molestation of mankind.
How far the perversity of the inanimate can lead I saw in a criminal case
in which a big isolated hay-stack was set on fire. A traveler was going
across the country and sought shelter against oncoming bad weather. The
very last minute before a heavy shower he reached a hay-stack with a solid
straw cover, crept into it, made himself comfortable in the hay and enjoyed
his good fortune. Then he fell asleep, but soon woke again inasmuch as he,
his clothes, and all the hay around him was thoroughly soaked, for the roof
just above him was leaking. In frightful rage over this “evil perversity,” he
set the stack on fire and it burned to the ground.
It may be said that the fact of the man’s anger is as much a motive as any
other and should have no influence on the legal side of the incident. Though
this is quite true, we are bound to consider the crime and the criminal as a
unit and to judge them so. If under such circumstances we can say that this
unit is an outcome natural to the character of mankind, and even if we say,
perhaps, that we might have behaved similarly under like circumstances, if
we really cannot find something absolutely evil in the deed, the criminal
quality of it is throughout reduced. Also, in such smaller cases the
fundamental concept of modern criminology comes clearly into the
foreground: “not the crime but the criminal is the object of punishment, not
the concept but the man is punished.” (Liszt).
The fact of the presence of a significant irritation is important for
passing judgment, and renders it necessary to observe with the most
thorough certainty how this irritation comes about. This is the more
important inasmuch as it becomes possible to decide whether the irritation

is real or artificial and imitated. Otherwise, however, the meaning of the
irritation can be properly valued only when its development can be held
together step by step with its causes. Suppose I let the suspect know the
reason of suspicion brought by his enemies, then if his anger sensibly
increases with the presentation of each new ground, it appears much more
natural and real than if the anger increased in inexplicable fashion with
regard to less important reasons for suspicion and developed more slowly
with regard to the more important ones.
The collective nature of somatic phenomena in the case of great
excitement has been much studied, especially among animals, these being
simpler and less artificial and therefore easier to understand, and in the long
run comparatively like men in the expression of their emotions. Very many
animals, according to Darwin, erect their hair or feathers or quills in cases
of anxiety, fear, or horror, and nowadays, indeed, involuntarily, in order to
exhibit themselves as larger and more terrible. The same rising of the hair
even to-day plays a greater role among men than is generally supposed.
Everybody has either seen in others or discovered in himself that fear and
terror visibly raise the hair. I saw it with especial clearness during an
examination when the person under arrest suddenly perceived with
clearness, though he was otherwise altogether innocent, in what great
danger he stood of being taken for the real criminal. That our hair rises in
cases of fear and horror without being visible is shown, I believe, in the
well known movement of the hand from forehead to crown. It may be
supposed that the hair rises at the roots invisibly but sensibly and thus
causes a mild tickling and pricking of the scalp which is reduced by
smoothing the head with the hand. This movement, then, is a form of
involuntary scratching to remove irritation. That such a characteristic
movement is made during examination may therefore be very significant
under certain circumstances. Inasmuch as the process is indubitably an
influence of the nerves upon the finer and thinner muscle-fibers, it must
have a certain resemblance to the process by which, as a consequence of
fear, horror, anxiety, or care, the hair more or less suddenly turns white.
Such occurrences are in comparatively large numbers historical; G.
Pouchet[92] counts up cases in which hair turned white suddenly, (among
them one where it happened while the poor sinner was being led to
execution). Such cases do not interest us because, even if the accused
himself turned grey over night, no evidence is afforded of guilt or

innocence. Such an occurrence can be evidential only when the hair
changes color demonstrably in the case of a witness. It may then be
certainly believed that he had experienced something terrible and aging. But
whether he had really experienced this, or merely believed that he had
experienced it, can as yet not be discovered, since the belief and the actual
event have the same mental and physical result.
Properly to understand the other phenomena that are the result of
significant irritation, their matrix, their aboriginal source must be studied.
Spencer says that fear expresses itself in cries, in hiding, sobbing and
trembling, all of which accompany the discovery of the really terrible;
while the destructive passions manifest themselves in tension of the
muscles, gritting of the teeth, extending the claws: all weaker forms of the
activity of killing. All this, aboriginally inherited from the animals, occurs
in rather less intense degrees in man, inclusive of baring the claws, for
exactly this movement may often be noticed when somebody is speaking
with anger and vexation about another person and at the same time extends
and contracts his fingers. Anybody who does this even mildly and
unnoticeably means harm to the person he is talking about. Darwin indeed,
in his acutely observing fashion, has also called attention to this. He
suggests that a man may hate another intensely, but that so long as his
anatomy is not affected he may not be said to be enraged. This means
clearly that the somatic manifestations of inner excitement are so closely
bound up with the latter that we require the former whenever we want to
say anything about the latter. And it is true that we never say that a man was
enraged or only angry, if he remained physically calm, no matter how noisy
and explicit he might have been with words. This is evidence enough of the
importance of noticing bodily expression. “How characteristic,” says
Volkmar[93] “is the trembling and heavy breathing of fear, the glowering
glance of anger, the choking down of suppressed vexation, the stifling of
helpless rage, the leering glance and jumping heart of envy.” Darwin
completes the description of fear: The heart beats fast, the features pale, he
feels cold but sweats, the hair rises, the secretion of saliva stops, hence
follows frequent swallowing, the voice becomes hoarse, yawning begins,
the nostrils tremble, the pupils widen, the constrictor muscles relax. Wild
and very primitive people show this much more clearly and tremble quite
uncontrolled. The last may often be seen and may indeed be established as a
standard of culture and even of character and may help to determine how

far a man may prevent the inner irritation from becoming externally
noticeable. Especially he who has much to do with Gypsies is aware how
little these people can control themselves. From this fact also spring the
numerous anecdotes concerning the wild rulers of uncultivated people, who
simply read the guilt of the suspect from his external behavior, or even
more frequently were able to select the criminal with undeceivable
acuteness from a number brought before them. Bain[94] narrates that in
India criminals are required to take rice in the mouth and after awhile to spit
it out. If it is dry the accused is held to be guilty—fear has stopped the
secretion of saliva—obstupui, stetetuntque comae, et vox faucibus haesit.
Concerning the characteristic influence of timidity see Paul Hartenberg.
[95]

Especially self-revealing are the outbreaks of anger against oneself, the
more so because I believe them always to be evidence of consciousness of
guilt. At least, I have never yet seen an innocent man fall into a paroxysm of
rage against himself, nor have I ever heard that others have observed it, and
I would not be able psychologically to explain such a thing should it
happen. Inasmuch as scenes of this kind can occur perceivably only in the
most externalized forms of anger, so such an explosion is elementary and
cannot possibly be confused with another. If a man wrings his hands until
they bleed, or digs his finger-nails into his forehead, nobody will say that
this is anger against himself; it is only an attempt to do something to release
stored-up energy, to bring it to bear against somebody. People are visibly
angry against themselves only when they do such things to themselves as
they might do to other people; for example, beating, smashing, pulling the
hair, etc. This is particularly frequent among Orientals who are more
emotional than Europeans. So I saw a Gypsy run his head against a wall,
and a Jew throw himself on his knees, extend his arms and box his ears with
both hands so forcibly that the next day his cheeks were swollen. But other
races, if only they are passionate enough, behave in a similar manner. I saw
a woman, for example, tear whole handfuls of hair from her head, a
murdering thief, guilty of more or fewer crimes, smash his head on the
corner of a window, and a seventeen year old murderer throw himself into a
ditch in the street, beat his head fiercely on the earth, and yell, “Hang me!
Pull my head off!”
The events in all these cases were significantly similar: the crime was so
skilfully committed as conceivably to prevent the discovery of the criminal;

the criminal denied the deed with the most glaring impudence and fought
with all his power against conviction—in the moment, however, he realized
that all was lost, he exerted his boundless rage against himself who had
been unable to oppose any obstacle to conviction and who had not been
cautious and sly enough in the commission of the crime. Hence the
development of the fearful self-punishment, which could have no meaning
if the victim had felt innocent.
Such expressions of anger against oneself often finish with fainting. The
reason of the latter is much less exhaustion through paroxysms of rage than
the recognition and consciousness of one’s own helplessness.
Reichenbach[96] once examined the reason for the fainting of people in
difficult situations. It is nowadays explained as the effect of the excretion of
carbonic acid gas and of the generated anthropotoxin; another explanation
makes it a nervous phenomenon in which the mere recognition that release
is impossible causes fainting, the loss of consciousness. For our needs either
account of this phenomenon will do equally. It is indifferent whether a man
notices that he cannot voluntarily change his condition in a physical sense,
or whether he notices that the evidence is so convincing that he can not
dodge it. The point is that if for one reason or another he finds himself
physically or legally in a bad hole, he faints, just as people in novels or on
the stage faint when there is no other solution of the dramatic situation.
When anger does not lead to rage against oneself, the next lower stage is
laughter.[97] With regard to this point, Darwin calls attention to the fact that
laughter often conceals other mental conditions than those it essentially
stands for—anger, rage, pain, perplexity, modesty and shame; when it
conceals anger it is anger against oneself, a form of scorn. This same
wooden, dry laughter is significant, and when it arises from the perception
that the accused no longer sees his way out, it is not easily to be confused
with another form of laughter. One gets the impression that the laughter is
trying to tell himself, “That is what you get for being bad and foolish!”
Section 16. (3) Cruelty.

Under this caption must be placed certain conditions that may under
given circumstances be important. Although apparently without any
relations to each other they have the common property of being external
manifestations of mental processes.

In many cases they are explanations which may arise from the
observation of the mutative relations between cruelty, bloodthirstiness, and
sensuality. With regard to this older authors like Mitchell,[98] Blumröder,[99]
Friedreich,[100] have brought examples which are still of no little worth.
They speak of cases in which many people, not alone men, use the irritation
developed by greater or lesser cruelty for sexual purposes: the torturing of
animals, biting, pinching, choking the partner, etc. Nowadays this is called
sadism.[101] Certain girls narrate their fear of some of their visitors who
make them suffer unendurably, especially at the point of extreme passion,
by biting, pressing, and choking. This fact may have some value in
criminology. On the one hand, certain crimes can be explained only by
means of sexual cruelty, and on the other, knowledge of his habits with this
regard may, again, help toward the conviction of a criminal. I recall only the
case of Ballogh-Steiner in Vienna, a case in which a prostitute was stifled.
The police were at that time hunting a man who was known in the quarter
as “chicken-man,” because he would always bring with him two fowls
which he would choke during the orgasm. It was rightly inferred that a man
who did that sort of thing was capable under similar circumstances of
killing a human being. Therefore it will be well, in the examination of a
person accused of a cruel crime, not to neglect the question of his sexual
habits; or better still, to be sure to inquire particularly whether the whole
situation of the crime was not sexual in nature.[102]
In this connection, deeds that lead to cruelty and murder often involve
forms of epilepsy. It ought therefore always to be a practice to consult a
physician concerning the accused, for cruelty, lust, and psychic disorders
are often enough closely related. About this matter Lombroso is famous for
the wealth of material he presents.
Section 17. (4) Nostalgia.

The question of home-sickness is of essential significance and must not
be undervalued. It has been much studied and the notion has been reached
that children mainly (in particular during the period of puberty), and idiotic
and weak persons, suffer much from home-sickness, and try to combat the
oppressive feeling of dejection with powerful sense stimuli. Hence they are
easily led to crime, especially to arson. It is asserted that uneducated people
in lonesome, very isolated regions, such as mountain tops, great moors,
coast country, are particularly subject to nostalgia. This seems to be true and

is explained by the fact that educated people easily find diversion from their
sad thoughts and in some degree take a piece of home with them in their
more or less international culture. In the same way it is conceivable that
inhabitants of a region not particularly individualized do not so easily notice
differences. Especially he who passes from one city to another readily finds
himself, but mountain and plain contain so much that is contrary that the
feeling of strangeness is overmastering. So then, if the home-sick person is
able, he tries to destroy his nostalgia through the noisiest and most exciting
pleasures; if he is not, he sets fire to a house or in case of need, kills
somebody—in short what he needs is explosive relief. Such events are so
numerous that they ought to have considerable attention. Nostalgia should
be kept in mind where no proper motive for violence is to be found and
where the suspect is a person with the above-mentioned qualities. Then
again, if one discovers that the suspect is really suffering from home-
sickness, from great home-sickness for his local relations, one has a point
from which the criminal may be reached. As a rule such very pitiful
individuals are so less likely to deny their crime in the degree in which they
feel unhappy that their sorrow is not perceivably increased through arrest.
Besides that, the legal procedure to which they are subjected is a not
undesired, new and powerful stimulus to them.
When such nostalgiacs confess their deed they never, so far as I know,
confess its motive. Apparently they do not know the motive and hence
cannot explain the deed. As a rule one hears, “I don’t know why, I had to do
it.” Just where this begins to be abnormal, must be decided by the
physician, who must always be consulted when nostalgia is the ground for a
crime. Of course it is not impossible that a criminal in order to excite pity
should explain his crime as the result of unconquerable home-sickness—but
that must always be untrue because, as we have shown, anybody who acts
out of home-sickness, does not know it and can not tell it.
Section 18. (5) Reflex Movements.

Reflex actions are also of greater significance than as a rule they are
supposed to be. According to Lotze,[103] “reflex actions are not limited to
habitual and insignificant affairs of the daily life. Even compounded series
of actions which enclose the content even of a crime may come to actuality
in this way ... in a single moment in which the sufficient opposition of some
other emotional condition, the enduring intensity of emotion directed

against an obstacle, or the clearness of a moving series of ideas is lacking.
The deed may emerge from the image of itself without being caused or
accompanied by any resolve of the doer. Hearings of criminals are full of
statements which point to such a realization of their crimes, and these are
often considered self-exculpating inventions, inasmuch as people fear from
their truth a disturbance or upsetting of the notions concerning adjudication
and actionability. The mere recognition of that psychological fact alters the
conventional judgment but little; the failure in these cases consists in not
having prevented that automatic transition of images into actions, a
transition essentially natural to our organism which ought, however, like so
many other things, to be subjected to power of the will.” Reflex movements
require closer study.[104] The most numerous and generally known are:
dropping the eyelids, coughing, sneezing, swallowing, all involuntary
actions against approaching or falling bodies; then again the patellar reflex
and the kremaster reflex, etc. Other movements of the same kind were once
known and so often practised that they became involuntary.[105] Hence, for
example, the foolish question how a person believed to be disguised can be
recognized as man or woman. The well known answer is: let some small
object fall on his lap; the woman will spread her limbs apart because she is
accustomed to wear a dress in which she catches the object; the man will
bring his limbs together because he wears trousers and is able to catch the
object only in this way. There are so many such habitual actions that it is
difficult to say where actual reflexes end and habits begin. They will be
properly distinguished when the first are understood as single detached
movements and the last as a continuous, perhaps even unconscious and
long-enduring action. When I, for example, while working, take a cigar, cut
off the end, light it, smoke, and later am absolutely unaware that I have
done this, what has occurred is certainly not a reflex but a habitual action.
The latter does not belong to this class in which are to be grouped only such
as practically bear a defensive character. As examples of how such
movements may have criminological significance only one’s own
experience may be cited because it is so difficult to put oneself at the point
of view of another. I want to consider two such examples. One evening I
passed through an unfrequented street and came upon an inn just at the
moment that an intoxicated fellow was thrown out, and directly upon me.
At the very instant I hit the poor fellow a hard blow on the ear. I regretted
the deed immediately, the more so as the assaulted man bemoaned his

misfortune, “inside they throw him out, outside they box his ears.” Suppose
that I had at that time burst the man’s ear-drum or otherwise damaged him
heavily. It would have been a criminal matter and I doubt whether anybody
would have believed that it was a “reflex action,” though I was then, as to-
day, convinced that the action was reflex. I didn’t in the least know what
was going to happen to me and what I should do. I simply noticed that
something unfriendly was approaching and I met it with a defensive action
in the form of an upper-cut on the ear. What properly occurred I knew only
when I heard the blow and felt the concussion of my hand. Something
similar happened to me when I was a student. I had gone into the country
hunting before dawn, when some one hundred paces from the house, right
opposite me a great ball rolled down a narrow way. Without knowing what
it was or why I did it I hit at the ball heavily with an alpenstock I carried in
my hand, and the thing emerged as two fighting tomcats with teeth fixed in
each other. One of them was my beloved possession, so that I keenly
regretted the deed, but even here I had not acted consciously; I had simply
smashed away because something unknown was approaching me. If I had
then done the greatest damage I could not have been held responsible—if
my explanation were allowed; but that it would have been allowed I do not
believe in this case, either.
A closer examination of reflex action requires consideration of certain
properties, which in themselves cannot easily have criminal significance,
but which tend to make that significance clearer. One is the circumstance
that there are reflexes which work while you sleep. That we do not excrete
during sleep depends on the fact that the faeces pressing in the large
intestine generates a reflexive action of the constrictors of the rectum. They
can be brought to relax only through especially powerful pressure or
through the voluntary relaxation of one’s own constrictors.
The second suggestive circumstance is the fact that even habitual
reflexes may under certain conditions, especially when a particularly
weighty different impression comes at the same time, not take place. It is a
reflex, for example, to withdraw the hand when it feels pain, in spite of the
fact that one is so absorbed with another matter as to be unaware of the
whole process; but if interest in this other matter is so sufficiently fixed as
to make one forget, as the saying goes, the whole outer world, the outer
impression of pain must have been very intense in order to awaken its
proper reflex. The attention may, however, not be disturbed at all and yet

the reflex may fail. If we suppose that a reflex action is one brought about
through the excitement of an afferent sensory nerve which receives the
stimulation and brings it to the center from which the excitement is
transferred to the motor series (Landois[106]), we exclude the activity of the
brain. But this exclusion deals only with conscious activity and the direct
transition through the reflex center can happen successfully only because
the brain has been consciously at work innumerable times, so that it is
coöperating in the later cases also without our knowing it. When, however,
the brain is brought into play through some other particularly intense
stimuli, it is unable to contribute that unconscious cöoperation and hence
the reflex action is not performed. On this point I have, I believe, an
instructive and evidential example. One of my maids opened a match-box
pasted with paper at the corner by tearing the paper along the length of the
box with her thumb-nail. Apparently the box was over-filled or the action
was too rapidly made, for the matches flamed up explosively and the whole
box was set on fire. What was notable was the fact that the girl threw the
box away neither consciously nor instinctively; she shrieked with fright and
kept the box in her hand. At her cry my son rushed in from another room,
and only after he had shouted as loudly as possible, “Throw it away, drop
it,” did she do so. She had kept the burning thing in her hand long enough
to permit my son to pass from one room into another, and her wound was so
serious that it needed medical treatment for weeks. When asked why she
kept the burning box in her hand in spite of really very terrible pain she
simply declared that “she didn’t think of it,” though she added that when
she was told to throw the thing away it just occurred to her that that would
be the wisest of all things to do. What happened then was obviously this:
fear and pain so completely absorbed the activity of the brain that it was not
only impossible for it consciously to do the right thing, it was even unable
to assist in the unconscious execution of the reflex.
This fact suggests that the sole activity of the spinal cord does not suffice
for reflexes, since if it did, those would occur even when the brain is
otherwise profoundly engaged. As they do not so occur the brain also must
be in play. Now this distinction is not indifferent for us; for if we hold that
the brain acts during reflexes we have to grant the possibility of degrees in
its action. Thus where brain activity is in question, the problem of
responsibility also arises, and we must hold that wherever a reflex may be
accepted as the cause of a crime the subject of the degree of punishment

must be taken exceptionally into account. It is further to be noted that as a
matter of official consideration the problem of the presence of reflexes
ought to be studied, since it rarely occurs that a man says, “It was purely a
reflex action.” He says, perhaps, “I don’t know how it happened,” or, “I
couldn’t do otherwise,” or he denies the whole event because he really was
not aware how it happened. That the questions are here difficult, both with
regard to the taking of evidence, and with regard to the judgment of guilt, is
obvious,—and it is therefore indifferent whether we speak of deficiency in
inhibition-centers or of ill-will[107] and malice.
Section 19. (6) Dress.

It is easy to write a book on the significance of a man’s clothes as the
expression of his inner state. It is said that the character of a woman is to be
known from her shoe, but actually the matter reaches far beyond the shoe,
to every bit of clothing, whether of one sex or the other. The penologist has
more opportunity than any one else to observe how people dress, to take
notes concerning the wearer, and finally to correct his impressions by
means of the examination. In this matter one may lay down certain axioms.
If we see a man whose coat is so patched that the original material is no
longer visible but the coat nowhere shows a hole; if his shirt is made of the
very coarsest and equally patched material but is clean; and if his shoes are
very bad but are whole and well polished, we should consider him and his
wife as honest people, without ever making an error. We certainly see very
little wisdom in our modern painfully attired “sports,” we suspect the
suggestively dressed woman of some little disloyalty to her husband, and
we certainly expect no low inclinations from the lady dressed with
intelligent, simple respectability. If a man’s general appearance is correct it
indicates refinement and attention to particular things. Anybody who
considers this question finds daily new information and new and reliable
inferences. Anyway, everybody has a different viewpoint in this matter, a
single specific detail being convincing to one, to another only when taken in
connection with something else, and to a third when connected with still a
third phenomenon. It may be objected that at least detailed and prolonged
observations are necessary before inferences should be drawn from the way
of dressing, inasmuch as a passing inclination, economic conditions, etc.,
may exert no little influence by compelling an individual to a specific
choice in dress. Such influence is not particularly deep. A person subject to

a particular inclination may be sufficiently self-exhibiting under given
circumstances, and that he was compelled by his situation to dress in one
way rather than another is equally self-evident. Has anybody seen an honest
farm hand wearing a worn-out evening coat? He may wear a most
threadbare, out-worn sheep-skin, but a dress-coat he certainly would not
buy, even if he could get it cheap, nor would he take it as a gift. He leaves
such clothes to others whose shabby elegance shows at a glance what they
are. Consider how characteristic are the clothes of discharged soldiers, of
hunters, of officials, etc. Who fails to recognize the dress of a real clerical,
of democrats, of conservative-aristocrats? Their dress is everywhere as well
defined as the clothing of Englishmen, Frenchmen, Germans, and
Americans, formed not by climatic conditions but by national character in a
specific and quite unalterable way. Conceit, carelessness, cleanliness,
greasiness, anxiety, indifference, respectability, the desire to attract attention
and to be original, all these and innumerable similar and related qualities
express themselves nowhere so powerfully and indubitably as in the way
people wear their clothes. And not all the clothes together; many a time a
single item of dress betrays a character.
Section 20. (7) Physiognomy and Related Subjects.

The science of physiognomy belongs to those disciplines which show a
decided variability in their value. In classical times it was set much store by,
and Socrates, Plato, Aristotle, and Pythagoras were keenly interested in its
doctrines. Later on it was forgotten, was studied in passing when Baptista
Porta wrote a book about human physiognomy, and finally, when the works
of Lavater and the closely related ones of Gall appeared, the science came
for a short time into the foreground. Lavater’s well known monograph[108]
excited great attention in his day and brought its author enthusiastic
admiration. How much Goethe was interested in it is indicated in the
popular book by Von der Hellen and the exchange of letters between Goethe
and Lavater. If Lavater had not brought the matter into relation with his
mystical and apodictic manner, if he had made more observations and fewer
assertions, his fame would have endured longer and he would have been of
some use to the science; as it was it soon slipped from people’s minds and
they turned to the notorious phrenology of Gall. Gall, who to some degree
had worked with his friend Spurzheim, committed the same error in his
works[109] as Lavater, inasmuch as he lost himself in theories without

scientific basis, so that much that was indubitably correct and indicative in
his teaching was simply overlooked. His meaning was twice validated, once
when B. v. Cotta[110] and R. R. Noel[111] studied it intensively and justly
assigned him a considerable worth; the second tune when Lombroso and his
school invented the doctrine of criminal stigmata, the best of which rests on
the postulates of the much-scorned and only now studied Dr. Gall. The great
physiologist J. Müller declared: “Concerning the general possibility of the
principles of Gall’s system no a priori objections can be made.” Only
recently were the important problems of physiognomy, if we except the
remarkable work by Schack,[112] scientifically dealt with. The most
important and significant book is Darwin’s,[113] then the system of
Piderit[114] and Carus’s “Symbolik,”[115] all of them being based upon the
earlier fundamental work of the excellent English anatomist and surgeon,
Bell.[116] Other works of importance are those of LeBrun, Reich,
Mantegazza, Dr. Duchenne, Skraup, Magnus, Gessmann, Schebest, Engel,
Schneider, K. Michel, Wundt, C. Lange, Giraudet, A. Mosso, A. Baer,
Wiener, Lotze, Waitz, Lelut, Monro, Heusinger, Herbart, Comte, Meynert,
Goltz, Hughes, Borée,[117] etc. The present status of physiognomics is, we
must say, a very subordinate one. Phrenology is related to physiognomics as
the bony support of the skull to its softer ones, and as a man’s physiognomy
depends especially upon the conformation of his skull, so physiognomics
must deal with the forms of the skull. The doctrine of the movement of
physiognomy is mimicry. But physiognomics concerns itself with the
features of the face taken in themselves and with the changes which
accompany the alterations of consciousness, whereas mimicry deals with
the voluntary alterations of expression and gesture which are supposed to
externalize internal conditions. Hence, mimicry interests primarily actors,
orators, and the ordinary comedians of life. Phrenology remains the
research of physicians, anthropologists and psychologists, so that the
science of physiognomy as important in itself is left to us lawyers. Its value
as a discipline is variously set. Generally it is asserted that much, indeed,
fails to be expressed by the face; that what does show, shows according to
no fixed rules; that hence, whatever may be read in a face is derivable either
instinctively by oneself or not at all. Or, it may be urged, the matter can not
be learned. Such statements, as ways of disposing of things, occur regularly
wherever there is a good deal of work to do; people do not like to bother
with troublesome problems and therefore call them worthless. But whoever

is in earnest and is not averse to a little study will get much benefit from
intensive application to this discipline in relation to his profession.
The right of physiognomies to the status of an independent science is to
some degree established in the oft-repeated dictum that whatever is valid in
its simplest outline must be capable of extension and development. No man
doubts that there are intelligent faces and foolish ones, kind ones and cruel
ones, and if this assertion is admitted as it stands it must follow that still
other faces may be distinguished so that it is possible to read a certain
number of spiritual qualities from the face. And inasmuch as nobody can
indicate the point at which this reading of features must cease, the door is
opened to examination, observation and the collection of material. Then, if
one bewares of voluntary mistakes, of exaggeration and unfounded
assertion, if one builds only upon actual and carefully observed facts, an
important and well-grounded discipline must ensue.
The exceptionally acute psychiatrist Meynert shows[118] how
physiognomics depends on irradiation and parallel images. He shows what
a large amount of material having physiognomical contents we keep in
mind. Completely valueless as are the fixed forms by which mankind
judges the voluntary acts of its individual members, they point to the
universal conclusion that it is proper to infer from the voluntary acts of a
person whose features correspond to those of another the voluntary acts of
the other. One of Hans Virchow’s very detailed physiognomical
observations concerning the expression of interest in the eyes by means of
the pupil, has very considerable physiognomical value. The pupil, he
believes, is the gate through which our glance passes into the inner life of
our neighbor; the psychical is already close at hand with the word “inner.”
How this occurs, why rather this and not another muscle is innervated in the
development of a certain process, we do not know, but our ignorance does
not matter, since ultimately a man might split his head thinking why we do
not hear with our eyes and see with our ears. But to some extent we have
made observable progress in this matter. As far back as 1840 J. Müller[119]
wrote: “The reasons are unknown why various psychoses make use of
different groups of nerves or why certain facial muscles are related to
certain passions.” Gratiolet[120] thought it necessary forty years ago to deny
that muscles were developed merely for the purpose of expression. Almost
contemporaneously Piderit knew that expressive muscular movements refer
partly to imaginary objects and partly to imaginary sense impressions. In

this fact lies the key to the meaning of all expressive muscular movements.
Darwin’s epoch-making book on the expressions of the emotions finally
established the matter so completely and firmly, that we may declare
ourselves in possession of enough material for our purpose to make it
possible to carry our studies further. The study of this book of Darwin’s I
believe absolutely necessary to each criminalist—for he meets in every
direction, expositions and explanations that are related to cases he has
already experienced in practice or is sure to experience. I present here only
a few of Darwin’s most important notes and observations in order to
demonstrate their utility for our purpose.
As subjects for study he recommends children because they permit
forms of expression to appear vigorously and without constraint; lunatics,
because they are subject to strong passions without control; galvanized
persons, in order to facilitate the muscles involved, and finally, to establish
the identity of expression among all races of men and beasts. Of these
objects only children are important for our purpose. The others either are far
removed from our sphere of activity, or have only theoretic value. I should,
however, like to add to the subjects of observation another, viz., the simple
unstudied persons, peasants and such otherwise unspoiled individuals
whom we may believe innocent of all intention to play a comedy with us.
We can learn much from such people and from children. And it is to be
believed that in studying them we are studying not a special class but are
establishing a generally valid paradigm of the whole of mankind. Children
have the same features as adults, only clearer and simpler. For, suppose we
consider any one of Darwin’s dicta,—e.g., that in the expression of anger
and indignation the eyes shine, respiration becomes more rapid and intense,
the nostrils are somewhat raised, the look misses the opponent,—these so
intensely characteristic indices occur equally in the child and the adult.
Neither shows more or fewer, and once we have defined them in the child
we have done it for the adult also. Once the physiognomy of children and
simple people has been studied, the further study of different kinds of
people is no longer difficult; there is only the intentional and customary
masking of expression to look out for; for the rest, the already acquired
principles, mutandis mutatis, are to be used.
Darwin posits three general principles on which most expressions and
gestures are to be explained. They are briefly:
I. The principle of purposeful associated habits.

II. The principle of contradication.
III. The principle of the direct activity of the nervous system.
With regard to the first. When, in the course of a long series of
generations, any desire, experience, or disinclination, etc., has led to some
voluntary action, then, as often as the same or any analogous associated
experience is undergone, there will arise a tendency to the realization of a
similar action. This action may no longer have any use but is inherited and
generally becomes a mere reflex.
This becomes clearer when one notices how often habit facilitates very
complex action:—the habits of animals; the high steps of horses; the
pointing of pointers; the sucking of calves, etc. It is difficult for us in falling
to make opposite movements to stretching out the arms, even in bed; we
draw on our gloves unconsciously. Gratiolet says: “Whoever energetically
denies some point, etc., shuts his eyes; if he assents he nods and opens his
eyes wide. Whoever describes a terrible thing shuts his eyes and shakes his
head; whoever looks closely raises his eye-brows. In the attempt to think
the same thing is done or the eye-brows are contracted—both make the
glance keener. Thence follows the reflex activity.”
With regard to the second. Dogs who are quarrelling with cats assume
the appearance of battle—if they are kindly-minded they do the opposite,
although this serves no purpose. M. Taylor[121] says, that the gesture
language of the Cistercians depends considerably on antithesis; e.g.,
shrugging the shoulders is the opposite of firmness, immovability.
With regard to the direct activity of the nervous system, examples are
paling, trembling (fear, terror, pain, cold, fever, horror, joy), palpitation of
the heart, blushing, perspiring, exertion of strength, tears, pulling the hair,
urinating, etc. With these subdivisions it will be possible to find some
thoroughfare and to classify every phenomenon.
We want to discuss a few more particulars in the light of Darwin’s
examples. He warns us, first of all, against seeing[122] certain muscle
movements as the result of emotional excitement, because they were looked
for. There are countless habits, especially among the movements of the
features, which happen accidentally or as the result of some passing pain
and which have no significance. Such movements are often of the greatest
clearness, and do not permit the unexperienced observer to doubt that they
have important meanings, although they have no relation whatever to any

emotional condition. Even if it is agreed only to depend on changes of the
whole face, already established as having a definite meaning, there is still
danger of making mistakes, because well accredited facial conditions may
occur in another way (as matters of habit, nervous disturbances, wounds,
etc.). Hence in this matter, too, care and attention are required; for if we
make use of any one of the Darwinian norms, as, for example, that the eyes
are closed when we do not want to see a thing or when we dislike it, we still
must grant that there are people to whom it has become habitual to close
their eyes under other and even opposed conditions.
We must grant that, with the exception of such cases, the phenomena are
significant during examinations, as when we show the accused a very
effective piece of evidence, (e.g.: a comparison of hand-writings which is
evidential,) and he closes his eyes. The act is then characteristic and of
importance, particularly when his words are intended to contest the
meaning of the object in question. The contradiction between the movement
of his eyes and his words is then suggestive enough. The same occurs when
the accused is shown the various possibilities that lie before him—the
movement of the examination, the correlations and consequences. If he
finds them dangerous, he closes his eyes. So with witnesses also; when one
of them, e.g., deposes to more, and more harmfully, than according to our
own notion he can explain, he will close his eyes, though perhaps for an
instant only, if the inevitable consequences of his deposition are expounded
to him. If he closes his eyes he has probably said too much, and the proper
moment must not be missed to appeal to his conscience and to prevent more
exaggerated and irresponsible assertions.
This form of closing the eyes is not to be confused with the
performances of persons who want to understand the importance of their
depositions and to collect their senses, or who desire to review the story
mentally and consider its certainty. These two forms of closing the eyes are
different: the first, which wants to shut out the consequences of testimony,
is much shorter; the latter longer, because it requires a good deal of time to
collect one’s senses and to consider a problem. The first, moreover, is
accompanied by a perceivable expression of fear, while the latter is
manifest only by its duration; what is most important is a characteristic
contemporary and perceivable defensive movement of the hand, and this
occurs only in the cases where the desire is to exclude. This movement
occurs even among very phlegmatic persons, and hence is comparatively

reliable; it is not made by people who want undisturbedly to study a
question and to that end shut their eyes.
In a similar way there is significance in the sudden closing of the mouth
by either the accused or the witness. Resolution and the shutting of the
mouth are inseparable; it is as impossible to imagine a vacillating, doubting
person with lips closely pressed together, as a firm and resolute person with
open mouth. The reason implies Darwin’s first law: that of purposeful
associated habits. When a man firmly resolves upon some deed the
resolution begins immediately to express itself in movements which are
closely dependent upon bodily actions. Even when I suddenly resolve to
face some correctly-supposed disagreeable matter, or to think about some
joyless thing, a bodily movement, and indeed quite an energetic one, will
ensue upon the resolution—I may push my chair back, raise my elbows,
perhaps put my head quickly between my hands, push the chair back again,
and then begin to look or to think. Such actions, however, require
comparatively little bodily exertion; much more follows on different types
of resolutions—in short, a firm resolution requires a series of movements
immediately to follow its being made. And if we are to move the muscles
must be contracted. And it is, of course, obvious that only those muscles
can be set in action which are, according to the immediate situation of the
body, free to move. If we are sitting down, for example, we can not easily
make our feet conform to the movement of a march forward; nor can we do
much with the thighs, hence the only muscles we can use are those of the
face and of the upper limbs. So then, the mouth is closed because its
muscles are contracted, and with equal significance the arms are thrust
outward sharply, the fist clenched, and the forearm bent. Anybody may try
the experiment for himself by going through the actions enumerated and
seeing whether he does not become filled with a sense of resolution. It is to
be especially observed, as has already been indicated, that not only are
mental states succeeded by external movements, but imitated external
movements of any kind awaken, or at least plainly suggest, their correlated
mental states.
If, then, we observe in any person before us the signs of resolution we
may certainly suppose that they indicate a turn in what he has said and what
he is going to say. If they be observed in the accused, then he has certainly
resolved to pass from denial to confession, or to stick to his denial, or to
confess or keep back the names of his accomplices, the rendezvous, etc.

Inasmuch as in action there is no other alternative than saying or not saying
so, it might be supposed that there is nothing important in the foregoing
statement; the point of importance lies, however, in the fact that a definite
resolution has been reached of which the court is aware and from which a
departure will hardly be made. Therefore, what follows upon the resolution
so betrayed, we cannot properly perceive; we know only that it in all
likelihood consists of what succeeds it, i.e. the accused either confesses to
something, or has resolved to say nothing. And that observation saves us
additional labor, for he will not easily depart from his resolution.
The case is analogous with regard to the witness who tells no truth or
only a part of the truth. He reveals the marks of resolution upon deciding
finally to tell the truth or to persist in his lying, and so, whatever he does
after the marks of resolution are noted, we are saved unnecessary effort to
make the man speak one way or another.
It is particularly interesting to watch for such expressions of resolution in
jurymen, especially when the decision of guilt or innocence is as difficult as
it is full of serious consequences. This happens not rarely and means that
the juryman observed is clear in his own mind as to how he is going to vote.
Whatever testimony may succeed this resolution is then indifferent. The
resolved juryman is so much the less to be converted, as he usually either
pays no more attention to the subsequent testimony, or hears it in such
prejudiced fashion that he sees everything in his own way. In this case,
however, it is not difficult to tell what the person in question has decided
upon. If the action we now know follows a very damaging piece of
testimony, the defendant is condemned thereby; if it follows excusive
testimony he is declared innocent. Anybody who studies the matter may
observe that these manifestations are made by a very large number of
jurymen with sufficient clearness to make it possible to count the votes and
predict the verdict. I remember vividly in this regard a case that occurred
many years ago. Three men, a peasant and his two sons, were accused of
having killed an imbecile who was supposed to have boarded in their house.
The jury unanimously declared them guiltless, really because of failure, in
spite of much effort, to find the body of the victim. Later a new witness
appeared, the case was taken up again, and about a year after the first trial, a
second took place. The trial consumed a good many days, in which the
three defendants received a flood of anonymous letters which called
attention mostly to the fact that there was in such and such a place an

unknown imbecile woman who might be identical with the ostensible
murdered person. For that reason the defendant appealed for a
postponement of the trial or immediate liberation. The prosecutor of the
time fought the appeal but held that so far as the case went (and it was
pretty bad for the prosecution), the action taken with regard to the appeal
was indifferent. “The mills of the gods grind slowly,” he concluded in his
oration; “a year from now I shall appear before the jury.” The expression of
this rock-bound conviction that the defendants were guilty, on the part of a
man who, because of his great talent, had tremendous influence on juries,
caused an astounding impression. The instant he said it one could see in
most of the jurymen clearest signs of absolute resolution and the defendants
were condemned from that moment.
Correlated with the signs of resolution are those of astonishment. “The
hands are raised in the air,” says Darwin, “and the palm is laid on the
mouth.” In addition the eyebrows are regularly raised, and people of not too
great refinement beat their foreheads and in many cases there occurs a
slight, winding movement of the trunk, generally toward the left. The
reason is not difficult to find. We are astonished when we learn something
which causes an inevitable change in the familiar course of events. When
this occurs the hearer finds it necessary, if events are simple, properly to get
hold of it. When I hear that a new Niebelungen manuscript has been
discovered, or a cure for leprosy, or that the South Pole has been reached, I
am astonished, but immediate conception on my part is altogether
superfluous. But that ancient time in which our habitual movements came
into being, and which has endured longer, incomparably longer than our
present civilization, knew nothing whatever of these interests of the modern
civilized human being. What astonished people in those days were simple,
external, and absolutely direct novelties: that a flood was coming, that game
was near the camp, that inimical tribes had been observed, etc.—in short,
events that required immediate action. From this fact spring our significant
movements which must hence be perceivably related to the beginning of
some necessary action. We raise our hands when we want to jump up; we
elevate our eyebrows when we look up, to see further into the distance; we
slap our foreheads in order to stimulate the muscles of our legs, dormant
because of long sitting; we lay the palms of our hands on our mouths and
turn the trunk because we discover in the course of life rather more
disagreeable than pleasant things and hence we try to keep them out and to

turn away from them. And astonishment is expressed by any and all of these
contradictory movements.
In law these stigmata are significant when the person under examination
ought to be astonished at what is told him but for one reason or another
does not want to show his astonishment. This he may hide in words, but at
least one significant gesture will betray him and therefore be of
considerable importance in the case. So, suppose that we present some
piece of evidence from which we expect great results; if they do not come
we may perhaps have to take quite another view of the whole case. It is
hence important not to be fooled about the effect, and that can be
accomplished only through the observation of the witnesses’ gestures, these
being much more rarely deceptive than words.
Scorn manifests itself in certain nasal and oral movements. The nose is
contracted and shows creases. In addition you may count the so-called
sniffing, spitting, blowing as if to drive something away; folding the arms,
and raising the shoulders. The action seems to be related to the fact that
among savage people, at least, the representation of a worthless, low and
despicable person is brought into relation with the spread of a nasty odor:
the Hindoo still says of a man he scorns, “He is malodorous.” That our
ancestors thought similarly, the movement of the nose, especially raising it
and blowing and sniffing, makes evident. In addition there is the raising of
the shoulders as if one wanted to carry the whole body out of a disgusting
atmosphere—the conduct, here, is briefly the conduct of the proud. If
something of the sort is observable in the behavior of a witness it will, as a
rule, imply something good about him: the accused denies thereby his
identity with the criminal, or he has no other way of indicating the
testimony of some damaging witness as slander, or he marks the whole
body of testimony, with this gesture, as a web of lies.
The case is similar when a witness so conducts himself and expresses
scorn. He will do the latter when the defendant or a false witness for the
defense accuses him of slander, when indelicate motives are ascribed to
him, or earlier complicity with the criminal, etc. The situations which give a
man opportunity to show that he despises anybody are generally such as are
to the advantage of the scorner. They are important legally because they not
only show the scorner in a good light but also indicate that the scorn must
be studied more closely. It is, of course, naturally true that scorn is to a
great degree simulated, and for that reason the gestures in question must be

attentively observed. Real scorn is to be distinguished from artificial scorn
almost always by the fact that the latter is attended by unnecessary smiling.
It is popularly and correctly held that the smile is the weapon of the silent.
That kind of smile appears, however, only as defense against the less
serious accusations, or perhaps even more serious ones, but obviously never
when evil consequences attendant on serious accusations are involved. If
indubitable evil is in question, no really innocent person smiles, for he
scorns the person he knows to be lying and manifests other gestures than
the smile. Even the most confused individual who is trying to conceal his
stupidity behind a flat sort of laughter gives this up when he is so slandered
that he is compelled to scorn the liar; only the simulator continues to smile.
If, however, anybody has practised the manifestation of scorn he knows that
he is not to smile, but then his pose becomes theatrical and betrays itself
through its exaggeration.
Not far from scorn are defiance and spite. They are characterized by
baring the canine teeth and drawing together the face in a frown when
turning toward the person upon whom the defiance or spite is directed. I
believe that this image has got to be variously filled out by the additional
fact that the mouth is closed and the breath several times forced sharply
through the nostrils. This arises from the combination of resolution and
scorn, these being the probable sources of defiance and spite. As was
explained in the discussion of resolution, the mouth is bound to close; spite
and defiance are not thinkable with open mouth. Scorn, moreover, demands,
as we have shown, this blowing, and if the blowing is to be done while the
mouth is closed it must be done through the nose.
Derision and depreciation show the same expressions as defiance and
spite, but in a lesser degree. They all give the penologist a good deal to do,
and those defendants who show defiance and spite are not unjustly counted
as the most difficult we have to deal with. They require, above all,
conscientious care and patience, just indeed because not rarely there are
innocents among them. This is especially so when a person many times
punished is accused another time, perhaps principally because of his record.
Then the bitterest defiance and almost childish spite takes possession of him
against “persecuting” mankind, particularly if, for the nonce, he is innocent.
Such persons turn their spite upon the judge as the representative of this
injustice and believe they are doing their best by conducting themselves in
an insulting manner and speaking only a few defiant words with the

grimmest spite. Under such circumstances it is not surprising that the
inexperienced judge considers these expressions as the consequences of a
guilty conscience, and that the spiteful person may blame himself for the
results of his defiant conduct. He therefore pays no more attention to the
unfortunate. How this situation may lead to an unjust sentence is obvious.
But whether the person in question is guilty or not guilty, it is the
undeniable duty of the judge to make especial efforts with such persons, for
defiance and spite are in most cases the result of embitterment, and this
again comes from the disgusting treatment received at the hands of one’s
fellows. And it is the judge’s duty at least not to increase this guilt if he can
not wipe it away. The only, and apparently the simplest, way of dealing with
such people is the patient and earnest discussion of the case, the
demonstration that the judge is ready carefully to study all damaging facts,
and even a tendency to refer to evidence of innocence in hand, and a not
over-energetic discussion of the man’s possible guilt. In most cases this will
not be useful at the beginning. The man must have time to think the thing
over, to conceive in the lonely night that it is not altogether the world’s plan
to ruin him. Then when he begins to recognize that he will only hurt himself
by his spiteful silence if he is again and again examined he will finally be
amenable. Once the ice is broken, even those accused who at the beginning
showed only spite and defiance, show themselves the most tractable and
honest. The thing needful above all is patience.
Real rage, unfortunately, is frequent. The body is carried erect or thrown
forward, the limbs become stiff, mouth and teeth closely press together, the
voice becomes very loud or dies away or grows hoarse, the forehead is
wrinkled and the pupil of the eye contracted; in addition one should count
the change of color, the flush or deep pallor. An opportunity to simulate real
rage is rare, and anyway the characteristics are so significant that a mistake
in recognition can hardly be made. Darwin says that the conviction of one’s
own guilt is from time to time expressed through a sparkling of the eyes,
and through an undefinable affectation. The last is well known to every
penologist and explicable in general psychological terms. Whoever knows
himself to be guiltless behaves according to his condition, naturally and
without constraint: hence the notion that naïve people are such as represent
matters as they are. They do not find anything suspicious in them because
they do not know about suspicious matters. But persons who know
themselves guilty and try not to show it, must attain their end through

artifice and imitation, and when this is not well done the affectation is
obvious.
There is also something in the guilty sparkle of the eye. The sparkle in
the eyes of beauty, the glance of joy, of enthusiasm, of rapture, is not so
poetical as it seems, inasmuch as it is no more than intensified secretion of
tears. The latter gets its increase through nervous excitation, so that the
guilty sparkle should also be of the same nature. This may be considered as
in some degree a flow of tears in its first stages.
An important gesture is that of resignation, which expresses itself
especially as folding the hands in one’s lap. This is one of the most obvious
gestures, for “folding the hands in the lap” is proverbial and means there is
no more to be done. The gesture signifies, therefore, “I’m not going to do
any more, I can’t, I won’t.” Hence it must be granted that the condition of
resignation and its gesture can have no significance for our own important
problem, the problem of guilt, inasmuch as the innocent as well as the
guilty may become resigned, or may reach the limit at which he permits
everything to pass without his interference. In the essence and expression of
resignation there is the abandonment of everything or of some particular
thing, and in court, what is abandoned is the hope to show innocence, and
as the latter may be real as well as merely pleaded, this gesture is a definite
sign in certain cases. It is to be noted among the relations and friends of a
defendant who, having done everything to save him, recognize that the
evidence of guilt is irrefutable. It is again to be noticed among courageous
lawyers who, having exerted all their art to save their clients, perceive the
failure of their efforts. And finally, the defendants show it, who have clearly
recognized the danger of their case. I believe that it is not an empirical
accident that the gesture of resignation is made regularly by innocent
persons. The guilty man who finds himself caught catches at his head
perhaps, looks toward heaven gritting his teeth, rages against himself, or
sinks into a dull apathy, but the essential in resignation and all its
accompanying movements is foreign to him. Only that conforms to the idea
of resignation which indicates a surrender, the cession of some value that
one has a claim on—if a man has no claim to any given thing he can not
resign it. In the same way, a person without right to guiltlessness and
recognition, will instinctively not surrender it with the emotion of
resignation, but at most with despair or anger or rage. And it is for this
reason that the guilty do not exhibit gestures of resignation.

The contraction of the brow occurs in other cases besides those
mentioned. Before all it occurs when anything is dealt with intensively,
increasing with the increase of the difficulty of the subject. The aboriginal
source of this gesture lies in the fact that intensive activities involve the
need of acuter vision, and this is in some degree acquired by the contraction
of the skin of the forehead above the eyebrows; for vision is clarified in this
way. Intensive consideration on the part of a defendant or a witness, and the
establishment of its reality or simulation, are significant in determining
whether he himself believes the truth of what is about to be explained. Let
us suppose that the issue involves proving an alibi on a certain definite,
rather remote day, and the defendant is required to think over his
whereabouts on that day. If he is in earnest with regard to the establishment
of his alibi, i.e. if he really was not there and did not do the thing, it will be
important for him to remember the day in question and to be able to name
the witnesses of his whereabouts then. Hence he will think intensively. But
if he has claimed an alibi dishonestly, as is frequent with criminals, in order
to make people conclude that nobody has the right to demand where and for
how long a time he was on such and such a day, then there is no need of
thinking closely about something that has not happened. He exhibits in such
cases a kind of thoughtfulness, which is not, however, earnest and
profound: and these two adjectives describe real consideration. The same
observations are to be made in regard to dishonest witnesses who, when
pressed to think hard, only simulate doing so. One is compelled at the very
least to look closely after the witness who simply imitates intensive
thinking without showing the signs proper to it. The suspicion of false
testimony is then justifiable.
A rather different matter is that blank expression of the eyes which only
shows that its possessor is completely lost in his thoughts—this has nothing
to do with sharp recollection and demands above all things being let alone
or the belief of being so. In this case no distinguishing gestures are made,
though the forehead, mouth or chin may be handled, only, however, when
embarrassment occurs—i.e. when the man observes that he is being
watched, or when he discovers that he has forgotten the presence of other
people. It is supposed that this does not occur in court, but it does happen
not infrequently when, for example, the judge, after some long discussion
with the accused, is about to dictate what has been said. If this takes rather a
long time, it may chance that the witness is no longer listening but is staring

vacantly into the distance. He is then reviewing his whole life or the
development and consequences of his deed. He is absorbed in a so-called
intuitive thought, in the reproduction of events. Intensive consideration
requires the combination of particulars and the making of inferences; hence
the form of thinking we have just been speaking of is merely spiritual sight-
seeing. It is when this takes place that confessions are most easy to get, if
only the judge keeps his eyes properly open.
That contraction of the brow signifies a condition of disgust is well
known, but there is yet, as I believe, a still other use of this contraction—i.e.
its combination with a smile, indicating disbelief. How this union occurred
seems comparatively undiscoverable—perhaps it results from the
combination of the smile of denial with the frown of sharp observation. But
the gesture is, in any event, reliable, and may not easily stand for anything
but disbelief and doubt. Hence it is always a mistake to believe that
anybody who makes that expression believes what he has heard. If you test
it experimentally you will find that when you make it you say involuntarily
to yourself: “Well now, that can’t be true,” or “Look here, that’s a
whopper!” or something like that. The expression occurs most frequently in
confronting witnesses with defendants and especially witnesses with each
other.
The close relation of the contraction of the brow with its early stage, a
slight elevation of the eyebrows, is manifest in the fact that it occurs under
embarrassment—not very regularly but almost always upon the perception
of something foreign and inexplicable, or upon getting twisted in one’s talk;
in fact, upon all such conditions which require greater physical and
psychical clearness of vision, and hence the shutting out of superfluous
light. The expression may be important on the face of a defendant who
asserts,—e.g.—that he does not understand an argument intended to prove
his guilt. If he is guilty he obviously knows what happened in the
commission of the crime and thereby the argument which reproduces it, and
even if he assures the court a hundred times that he does not understand it,
he is either trying to show himself innocent or wants to gain time for his
answer. If he is innocent it may be that he really does not understand the
argument because he is unaware of the actual situation. Hence he will frown
and listen attentively at the very beginning of the argument. The guilty
person perhaps also aims to appear enormously attentive, but he does not
contract his brow, because he does not need to sharpen his glance; he knows

the facts accurately enough without it. It is important for the penologist to
know whether a man has in the course of his life undergone much anxiety
and trouble, or whether he has lived through it carelessly. Concerning these
matters Darwin points out that when the inner ends of the eyebrows are
raised certain muscles have to be contracted (i.e. the circular ones which
contract the eyebrows and the pyramidal muscle of the nose, which serve
both to pull down and contract the eyelids). The contraction is
accomplished through the vigorous drawing together of the central bundle
of muscles at the brow. These muscles, by contracting, raise the inner ends
of the brow, and since the muscles which contract the eyebrows bring them
together at the same time, their inner ends are folded in great lumpy creases.
In this way short oblique, and short perpendicular furrows are made. Now
this, few people can do without practice; many can never perform it
voluntarily, and it is more frequent among women and children than among
men. It is important to note that it is always a sign of spiritual pain, not
physical. And curiously enough it is as a rule related with drawing down the
corners of the mouth.
Further to study the movements of the features will require an
examination into the reasons for the action of these, and not other muscles,
as accompaniments of the psychical states. Piderit holds it is due to the fact
that the motor nerves which supply these muscles rise right next to the
purely psychical centers and hence these muscles are the supports of the
organs of sense. The latter is no doubt correct, but the first statement is
rather doubtful. In any event it is evident that the features contain an
exceptionally large number of fine muscles with especially rich motor
capacity, and hence move together and in accordance with the psychical
conditions. It may be that the other muscles of the body have also a share in
this but that we fail to perceive the fact. Such movements, however, have
not been essential.
We may take it as a general rule that all joyous and uplifting emotions
(even astonishment) are succeeded by the raising of the skin of the
forehead, the nostrils, the eyes, the eyelids, while sad and oppressing
emotions have the contrary effect. This simple and easy rule renders
immediately intelligible many an otherwise obscure expression which we
find important but concerning the meaning of which we are in doubt. The
development of a movement in any face goes, according to Harless,[123] in
this fashion: “The superior motor nerve is the oculomotorius. The

stimulation reaches this one first—the mildest alteration of emotion betrays
itself most rapidly in the look, the movement and condition of the pupil of
the eye. If the impulse is stronger it strikes the roots of the motor end of the
trigeminus and the movement of the muscles of mastication occur; then the
intensified affection spreads through the other features.” Nobody will, of
course, assert that even a completely developed physiognomical science
will help us over all our difficulties, but with a little attention it can help us
to a considerable degree. This help we do need, as La Rochefoucauld points
out, with even contemporary correctness, “It is easier to know men than to
know a particular man.”
Section 21. (8) The Hand.

The physiognomy of the hand stands close to that of the face in
significance and is in some relations of even greater importance, because
the expression of the hand permits of no, or very slight, simulation. A hand
may be rendered finer or coarser, may be rendered light or dark, the nails
may be cared for or allowed to develop into claws. The appearance of the
hand may be altered, but not its physiognomy or character. Whoever creases
his face in the same way for a thousand times finally retains the creases and
receives from them a determinate expression even if this does not reveal his
inner state; but whoever does the same thing a thousand times with his hand
does not thereby impress on it a means of identification. The frequent
Tartuffian rolling of the eyes finally gives the face a pious or at least
pietistic expression, but fold your hands in daily prayer for years and
nobody would discover it from them. It seems, however, of little use to
know that human hands can not be disguised, if they are little or not at all
differentiated; but as it happens they are, next to the face, the most
extremely and profoundly differentiated of human organs; and a general law
teaches us that different effects are produced by different causes, and that
from the former the latter may be inferred. If then we observe the infinite
variety of the human hand we have to infer an equally infinite variety of
influences, and inasmuch as we cannot trace these influences any further we
must conclude that they are to be explained causally by the infinite variety
of psychical states.
Whoever studies the hand psychologically gains in the course of time a
great deal of faith in what the hand tells him. And finally he doubts it only
when chirognomy conflicts with physiognomy. If in such cases it is

observed that the hand is more likely to be correct than the face, and that
inferences from the hand more rarely show themselves to be false, one is
reminded of the dictum of Aristotle, “The hand is the organ of organs, the
instrument of instruments in the human body.” If this is correct, the favored
instrument must be in the closest kind of relation with the psyche of the
owner, but if this relation exists there must be an interaction also. If the
hand contained merely its physical structure, Newton would never have
said, “Other evidence lacking, the thumb would convince me of God’s
existence.”
How far one ought to establish fundamental propositions in this matter, I
can not easily say. Perhaps it would be scientifically most correct to be
satisfied for the time with collecting the carefully and keenly observed
material and getting the anatomists, who are already in need of material for
professional investigations, to take the matter up; in collecting photographs
of hands belonging to persons whose characters are well known and in
getting a sufficient number of properly equipped persons to make the
collection. If we had enough material to draw fundamental principles from,
much that has been asserted by Bell, Carus, D’Arpentigny, Allen,
Gessmann, Liersch, Landsberg,[124] etc., might be proved and tested. But
their statements are still subject to contradiction because their fundamental
principles are not sufficient for the development of a system. Probably
nobody will doubt some of the more common statements; all will grant with
Winkelmann that a beautiful hand is in keeping with a beautiful soul; or
with Balzac that people of considerable intellect have handsome hands, or
in calling the hand man’s second face. But when specific co-ordinations of
the hand are made these meet with much doubt. So for example, Esser[125]
calls the elementary hand essentially a work hand, the motor essentially a
masculine hand, having less soul and refinement of character than will and
purposefulness. So again the sensitive hand implies generally a sanguine
character, and the psychic hand presents itself as the possession of beautiful
souls and noble spirits.
However true this classification may be, the establishment and
description of the various significatory signs is very difficult, especially
because the forms named rarely appear in clear and sharply defined
subdivisions. The boundaries are fluid, like the characters themselves, and
where the properties of one group pass almost directly into the other, both
description and recognition are difficult. If, then, we can not depend upon a

systematic, and at present remote treatment, we still may depend on well-
founded observations which appear as reliable presuppositions in the light
of their frequent repetition.
Not essentially psychological but of importance for the criminalist are
the inferences we may draw from Herbert Spencer’s assertion that people
whose ancestors have worked with their hands possess heavy hands.
Conversely, people whose ancestors have not worked hard with their hands
possess small and fine hands. Hence the small delicate hands of Jews, the
frequent perfection of form and invariable smallness of the hands of
Gypsies, who have inherited their hands from high-cast Hindoos, and the
so-called racial hands of real aristocrats. That hard work, even tumbling,
piano playing, etc., should alter the form of a hand is self-evident, since
muscles grow stronger with practice and the skin becomes coarser and
drawn through friction, sharp wind and insufficient care. As is well known,
physical properties are hereditary and observable in any study of races; is it
any wonder that a skilled glance at a man’s hand may uncover a number of
facts concerning the circumstances of his life? Nobody doubts that there are
raw, low, sensual, fat hands. And who does not know the suffering, spiritual,
refined, and delicate hand? Hands cannot of course be described and
distinguished according to fixed classification, and no doubt Hellenbach
was right when he said, “Who can discover the cause of the magic charm
which lies in one out of a hundred thousand equally beautiful hands?”
And this is remarkable because we are not fooled through a well cared
for, fine and elegant hand. Everybody, I might say, knows the convincing
quality that may lie in the enormous leathery fist of a peasant. For that, too,
is often harmoniously constructed, nicely articulated, appears peaceful and
trustworthy. We feel that we have here to do with a man who is honest, who
presents himself and his business as they are, who holds fast to whatever he
once gets hold of, and who understands and is accustomed to make his
words impressive. And we gain this conviction, not only through the
evidence of honest labor, performed through years, but also through the
stability and determination of the form of his hands. On the other hand, how
often are we filled with distrust at the sight of a carefully tended, pink and
white hand of an elegant gentleman—whether because we dislike its
condition or its shape, or because the form of the nails recalls an unpleasant
memory, or because there is something wrong about the arrangement of the
fingers, or because of some unknown reason. We are warned, and without

being hypnotised, regularly discover that the warning is justified. Certain
properties are sure to express themselves: coldness, prudence, hardness,
calm consideration, greed, are just as indubitable in the hand as kindness,
frankness, gentleness, and honesty.
The enchantment of many a feminine hand is easily felt. The surrender,
the softness, the concession, the refinement and honesty of many a woman
is so clear and open that it streams out, so to speak, and is perceivable by
the senses.
To explain all this, to classify it scientifically and to arrange it serially,
would be, nowadays at least, an unscientific enterprise. These phenomena
pass from body to body and are as reliable as inexplicable. Who has never
observed them, and although his attention has been called to them, still has
failed to notice them, need not consider them, but persons believing in them
must be warned against exaggeration and haste. The one advice that can be
given is to study the language of the hand before officially ignoring it; not
to decide immediately upon the value of the observations one is supposed to
have made, but to handle them cautiously and to test them with later
experiences. It is of especial interest to trace the movement of the hand,
especially the fingers. I do not mean those movements which are external,
and co-ordinate with the movements of the arm; those belong to mimicry. I
mean those that begin at the wrist and therefore occur in the hand only. For
the study of those movements the hand of childhood is of little use, being
altogether too untrained, unskilled, and neutral. It shows most clearly the
movement of the desire to possess, of catching hold and drawing toward
oneself, generally toward the mouth, as does the suckling child its mother’s
breast. This movement, Darwin has observed even among kittens.
The masculine hand is generally too heavy and slow, clearly to exhibit
the more refined movements; these are fully developed only in the
feminine, particularly in the hands of vivacious, nervous, and spiritually
excitable women. The justice who observes them may read more than he
can in their owner’s words. The hand lies in the lap apparently inert, but the
otherwise well concealed anger slowly makes a fist of it, or the fingers bend
characteristically forward as if they wished to scratch somebody’s eyes out.
Or they cramp together in deep pain, or the balls of the four other fingers
pass with pleasure over the ball of the thumb, or they move spasmodically,
nervously, impatiently and fearfully, or they open and close with

characteristic enjoyment like the paws of cats when the latter feel quite
spry.
Closer observation will show that toes reveal a great deal, particularly
among women who wear rather fine shoes and hence can move their feet
with greater ease. In anger, when they cannot, because it would be
suggestive, stamp their feet, the women press their toes closely to the
ground. If they are embarrassed they turn the sole of their shoe slightly
inwards and make small curves with the point on the ground. Impatience
shows itself through alternating and swinging pressure of heel and toe,
repeated with increasing rapidity; defiance and demand through raising the
toes in such a way that the sole is directly forward and the foot rests only on
the heel. Sensuality is always indicated when the foot is put forward and the
shin bone lightly stretched out, when all the toes are drawn in toward the
sole just as the cat does when she feels good. What women do not say in
words and do not express in their features and do not indicate in the
movement of their hands, they say with their feet; the inner experience must
express itself externally and the foot most betrays it.
In conclusion it ought to be kept in mind that the hands of all those
people who claim to be hard workers but who really try to live without
work, i.e. thieves, gamblers, etc., ought to be carefully examined.
Concerning the value of graphology see my “Manual for Examining
Judges.”
Title B. The Conditions for Defining Theories.
Topic I. THE MAKING OF INFERENCES.
Section 22.

The study of the human soul as psychology, has for its subject the whole
stream of conscious life and for its aim the discovery of the occurrence and
relation of the laws of human thought. Now whether these relations imply
the coherence of the objects thought about or not, so long as logic is dealing
with the laws according to which thoughts must be correlated in order to
attain to objectively valid knowledge, all questions that deal with the formal
aspect of thinking do not enter the field of psychological investigation. The
general psychological problem is to describe the actual psychic events as
they occur, to analyze them into their simplest elements, and inasmuch as it
is this purely pragmatic application of psychology to the problem of

inference that concerns us, we need to deal only with that law which defines
the combination of images and with the question,—how the spirit achieves
this combination. The material aspect of this question is therefore
psychological. The legal importance of the problem lies in the very potent
fact that inferences and theories are often constructed which are formally or
logically absolutely free of error, yet psychologically full of errors that no
logic whatever could correct. We have, therefore, to consider at least the
most important conditions which determine the manner of our inferences.
The right which lawyers possess of studying these questions, so far as
they lie in our field, is of modern establishment. According to
Hillebrand[126] the theory of knowledge has to-day broken up into
individual theories, involving the certain needs of special fields of
knowledge. The place of the epistomologists, who are professionals and
beyond the pale of individual disciplines, is now taken by the
representatives of those disciplines and each works expressly on his own
epistomological problem. Our especial problem is the drawing of inferences
from the material presented to us or brought together by our efforts, just as
in other disciplines. If we set ourselves the task of determining the
procedure when subjecting the fundamental principles of our work to
revision and examining their utility, we merely ask whether the process is
voluntary or according to fixed laws; and having cleared up that point we
ask what influence psychological conditions exercise on the situation. It is,
indeed, said that thinking is a congenital endowment, not to be learned from
rules. But the problem is not teaching the inferrer to think; the problem is
the examination of how inferences have been made by another and what
value his inferences may have for our own conclusions. And our own time,
which has been bold enough to lay this final conclusion in even the most
important criminal cases, in the hands of laymen, this time is doubly bound
at least to prepare all possible control for this work, to measure what is
finally taken as evidence with the finest instruments possible, and to present
to the jury only what has been proved and repeatedly examined.
It might almost seem as if the task the jury trial sets the judge has not
been clearly perceived. A judge who thinks he has performed it when he has
cast before the jury the largest possible mass of testimony, more or less
reviewed, and who sees how people, who perhaps for the first time in their
lives, are involved in a court of law, who perhaps see a criminal for the first
time, and are under these circumstances the arbiters of a man’s fate,—a

judge who sees all this and is satisfied, is not effective in his work.
Nowadays more than ever, it is for the judge to test all evidence
psychologically, to review what is only apparently clear, to fill out lacunae,
and to surmount difficulties, before he permits the material brought together
in a very few hours to pass into the jury’s hands. According to Hillebrand,
much that seems “self-evident” shows itself dependent on definite
experience attained in the process of hundreds of repetitions in the daily
life; the very impression of self-evidence is frequently produced by a mere
chance instinct about what should be held for true. Hume has already shown
how the most complex and abstract concepts are derived from sensation.
Their relation must be studied, and only when we can account for every
psychic process with which we have to concern ourselves, is our duty
properly fulfilled.
Section 23. (2) Proof.

Mittermaier[127] holds that “as a means of testimony in the legal sense of
that term every possible source must be examined which may suffice the
judge according to law. And from such examination only may the requisite
certainties be attained from which the judge is to assume as determined,
facts relevant to his judgment.” Only the phrase “according to law” needs
explanation, inasmuch as the “source” of reasons and certainties must
satisfy the legal demands not only formally but must sustain materially
every possible test, whether circumstantial or logico-psychologic. If, for
example, the fundamental sources should be a combination of (1) a judicial
examination of premises (lokalaugenschein), (2) testimony of witnesses,
and (3) a partial confession, the requirements of the law would be satisfied
if the protocol, (1), were written or made according to prescribed forms, if a
sufficient number of properly summoned witnesses unanimously confirmed
the point in question, and if finally the confession were made and
protocoled according to law. Yet, though the law be satisfied, not only may
the conclusion be wholly false but every particular part of the evidence may
be perfectly useless, without the presence anywhere of intentional untruth.
The personal examination may have been made by a judge who half the
time, for some sufficiently cogent reason, had a different conception of the
case than the one which later appeared to be true. It need not have been
necessary that there should be mixed therewith false information of
witnesses, incorrect observation, or such other mistakes. There need only

have been a presupposition, accepted at the beginning of the examination,
when the examination of the premises took place, as to the visible condition
of things; and this might have given apparent justification to doubtful
material and have rendered it intelligible, only to be shown later as false.
The so-called “local examination” however, is generally supposed to be
“objective.” It is supposed to deal only with circumstantial events, and it
does not occur to anybody to modify and alter it when it is certainly known
that at another point the situation has taken an altogether different form.
The objectivity of the local examination is simply non-existent, and if it
were really objective, i.e., contained merely dry description with so and so
many notations of distances and other figures, it would be of no use. Every
local examination, to be of use, must give an accurate picture of the mental
process of him who made it. On the one hand it must bring vividly to the
mind of the reader, even of the sentencing judge, what the situation was; on
the other, it must demonstrate what the examiner thought and represented to
himself in order that the reader, who may have different opinions, may have
a chance to make corrections. If I, for example, get the impression that a
fire was made through carelessness, and that somebody lost his life on
account of it, and if I made my local examination with this presupposition
in mind, the description will certainly seem different from that made under
the knowledge that the fire was intentional and made to kill. At trial the
description of local conditions will be read and entered as important
testimony. It satisfies the law if it is taken according to form, has the correct
content, and is read as prescribed. But for our conscience and in truth this
manuscript can be correct only when it is logically and psychologically
presented revised according to the viewpoint its writer would have had if he
had been in possession of all the facts in possession of the reader. This work
of reconstruction belongs to the most difficult of our psychological tasks—
but it must be performed unless we want to go on superficially and without
conscience.
The judgment and interpretation of the testimony of witnesses, (2),
demand similar treatment. I am legally right if I base my judgment on the
testimony of witnesses (provided there are enough of them and they are
properly subpoenaed) if nothing suggestive is offered against their
testimony, if they do not contradict each other, and especially if there are no
contradictions in the testimony of any single individual. This inner
contradiction is rather frequent, and the inattention with which the

protocols, as a rule, are read, and the scanty degree in which the testimony
is tested logically and psychologically, are shown clearly by the fact that the
inner contradictions are not observed and worked over more frequently. As
evidence of this, let us consider a few cases that are generally told as
extravagant jokes. Suppose that a man dreamed that his head was cut off
and that that dream so affected him that he died of apoplexy—yet not
everybody asks how the dream was discovered. In a like manner people
hear with disgust that somebody who has lost his arm, in despair cut off his
other arm with an axe in order more easily to get assistance, and yet they do
not ask “how.” Or again when somebody is asked if he knows the romance
“The Emperor Joseph and The Beautiful Railway-signal-man’s Daughter,”
the anachronism of the title does not occur to him, and nobody thinks of the
impossibilities of the vivid description of a man walking back and forth,
with his hands behind his back, reading a newspaper.
Much testimony contains similar, if not so thorough-going
contradictions. If they are credited in spite of this fact the silly believer may
be blamed, but he is justified in the eyes of the law if the above-mentioned
legal conditions were satisfied. Hence, the frightfully frequent result:
“Whether the witness’s deposition is true, is a matter for his own
conscience; eventually he may be arrested for perjury, but he has made his
statements and I judge accordingly.” What is intended with such a statement
is this: “I hide behind the law, I am permitted to judge in such a case in such
a way, and nobody can blame me.” But it is correct to assert that in such
cases there is really no evidence, there is only a form of evidence. It can be
actually evidential only when the testimony is tested logically and
psychologically, and the ability and willingness of the witness to tell the
truth is made clear. Of course it is true, as Mittermaier says, that the
utterance of witnesses is tested by its consistency with other evidence, but
that is neither the only test nor the most valid, for there is always the more
important internal test, in the first place; and in the second place, it is not
conclusive because the comparison may reveal only inconsistency, but can
not establish which of the conflicting statements is correct. Correctness can
be determined only through testing the single statements, the willingness
and ability of each witness, both in themselves and in relation to all the
presented material.
Let us take now the third condition of our suppositions case, i.e. partial
confession. It is generally self-evident that the value of the latter is to be

judged according to its own nature. The confession must be accepted as a
means of proof, not as proof, and this demands that it shall be consistent
with the rest of the evidence, for in that way only can it become proof. But
it is most essential that the confession shall be internally tested, i.e.
examined for logical and psychological consistency. This procedure is
especially necessary with regard to certain definite confessions.
(a) Confessions given without motive.
(b) Partial confessions.
(c) Confessions implying the guilt of another.
(a) Logic is, according to Schiel[128] the science of evidence—not of
finding evidence but of rendering evidence evidential. This is particularly
true with regard to confessions, if we substitute psychology for logic. It is
generally true that many propositions hold so long only as they are not
doubted, and such is the case with many confessions. The crime is
confessed; he who confesses to it is always a criminal, and no man doubts
it, and so the confession stands. But as soon as doubt, justified or
unjustified, occurs, the question takes quite a different form. The confession
has first served as proof, but now psychological examination alone will
show whether it can continue to serve as proof.
The most certain foundation for the truth of confession in any case is the
establishment of a clear motive for it—and that is rarely present. Of course
the motive is not always absent because we do not immediately recognize
it, but it is not enough to suppose that the confession does not occur without
a reason. That supposition would be approximately true, but it need not be
true. If a confession is to serve evidentially the motive must be clear and
indubitable. Proof of its mere existence is insufficient; we must understand
the confession in terms of all the factors that caused it. The process of
discovering these factors is purely logical and generally established
indirectly by means of an apagogue. This is essentially the proof by
negation, but it may serve in connection with a disjunctive judgment which
combines possible alternatives as a means of confirmation. We are, then, to
bring together all conceivable motives and study the confession with regard
to them. If all, or most of them, are shown to be impossible or insufficient,
we have left only the judgment of one or more conclusions, and with this
we have an essentially psychological problem. Such a problem is seldom
simple and easy, and as there is no possibility of contradiction, the danger is

nowhere so great of making light of the matter. “What is reasserted is half
proved.” That is a comfortable assertion, and leads to considerable
incorrectness. A confession is only established in truth when it is construed
psychologically, when the whole inner life of the confessor and his external
conditions are brought into relation with it, and the remaining motives
established as at least possible. And this must be done to avoid the reproach
of having condemned some confessor without evidence, for a confession
having no motive may be untrue, and therefore not evidential.
(b) Partial confessions are difficult, not only because they make it harder
to prove the evidence for what is not confessed, but also because what is
confessed appears doubtful in the light of what is not. Even in the simplest
cases where the reason for confession and silence seems to be clear,
mistakes are possible. If, for example, a thief confesses to having stolen
only what has been found in his possession but denies the rest, it is fairly
probable that he hopes some gain from the evidence in which there appears
to be no proof of his having stolen what has not been found upon him. But
though this is generally the case, it might occur that the thief wants to
assume the guilt of another person, and hence naturally can confess only to
what he is accused of, inasmuch as he either has insufficient or no evidence
whatever of his guilt for the rest of the crime.
Another fairly clear reason for partial confession, is shown in the
confession to a certain degree of malicious intent, as the denial of the intent
to kill. If this is made by a person who may be supposed to know the legal
situation, either because of earlier experience or for other reasons, there is
sufficient justification for doubting the honesty of his confession. Most of
such cases belong to the numerous class in which the defendant confesses
to a series of facts or a number of things, and denies a few of them without
any apparent reason; he may confess to a dozen objects used in an assault
and simply refuse to discuss two probably quite insignificant ones. If such a
case comes up for judgment to the full bench, half the judges say that since
he has stolen twelve he must have taken the other two, and the other half
say that since he has confessed to twelve he would have confessed to the
other two if he had taken them. Generally speaking, both sides are right;
one inference is as justified as the other. As a rule, such cases do not repay a
great deal of troublesome examination, inasmuch as the question of A’s
having stolen twelve or fourteen objects can little affect either his guilt or
his sentence. But it is to be remembered that it is never indifferent whether

a man pleads guilty or not guilty, and later on, especially in another case, it
may be quite the reverse of indifferent whether a man is condemned
because of a matter indifferent to-day. Suppose that the denied theft was of
a worthless but characteristic thing, e.g. an old prayer-book. If now the thief
is again suspected of a robbery which he denies and the theft is again that of
an old prayer-book, then it is not indifferent as a matter of proof whether the
man was condemned for stealing a prayer-book or not. If he was so
condemned, there will already be remarks about, “a certain passion for old
prayer-books,” and the man will be suspected of the second theft.
In regard to the possession of stolen goods, such a sentence may have
similar significance. I recall a case in which several people were sentenced
for the theft of a so-called fokos (a Hungarian cane with a head like an ax).
Later a fokos was used in murder in the same region and the first suspicion
of the crime was attached to the thief, who might, because of his early
crime, have been in possession of a fokos. Now suppose that the man had
confessed to theft of everything but the fokos, and that he had been
condemned on the basis of the confession, the fact would be of far-reaching
significance in the present case. Of course it is not intended that the old case
is to be tried again before the new. That would be a difficult job after the
lapse of some time, and in addition, would be of little use, for everybody
recalls the old judgment anyway and supposes that the circumstances must
have been such as to show the man guilty. If a man is once sentenced for
something he has not confessed to, the stigma remains no matter how the
facts may be against it.
Experience has shown that the victims of theft count everything stolen
that they do not discover at the first glance. And it might have been lost
long before the theft, or have been stolen at an earlier or a later time. For
this reason it often happens that servants, and even the children of the house
or other frequenters, take the robbery as an opportunity for explaining the
disappearance of things they are responsible for or steal afresh and blame it
upon “the thief.” The quantity stolen is generally exaggerated, moreover, in
order to excite universal sympathy and perhaps to invoke help. In general,
we must hold that there is no psychological reason that a confessor should
deny anything the confession of which can bring him no additional harm.
The last point must be carefully treated, for it requires taking the attitude of
the accused and not of the examiner. It is the former’s information and
view-point that must be studied, and it often contains the most perverted

view-points; e.g., one man denies out of mere obstinacy because he believes
that his guilt is increased by this or that fact. The proposition: who has
stolen one thing, has also stolen the rest, has slight justification.
(c) If a denying fellow-criminal is accused by a confession, the
interpretation of the latter becomes difficult. First of all, the pure kernel of
the confession must be brought to light, and everything set aside that might
serve to free the confessor and involve the other in guilt. This portion of the
work is comparatively the easiest, inasmuch as it depends upon the
circumstances of the crime. It is more difficult to determine what degree of
crime the confessor attached to himself by accusing also the other man,
because clearness can be reached in such a case only by working out the
situation from beginning to end in two directions; first, by studying it
without reference to the fellow-criminal, second, with such reference. The
complete elimination of the additional circumstance is exceedingly
troublesome because it requires the complete control of the material and
because it is always psychologically difficult so to exclude an event already
known in its development and inference as to be able to formulate a theory
quite without reference to it.
If this is really accomplished and some positive fact is established in the
self-accusation, the question becomes one of finding the value seen by the
confessor in blaming himself together with his fellow. Revenge, hatred,
jealousy, envy, anger, suspicion, and other passions will be the forces in
which this value will be found. One man brings his ancient comrade into
jeopardy in revenge for the latter’s injustice in the division of the booty, or
in deliberate anger at the commission of some dangerous stupidity in a
burglary. Again, it often happens that he or she, through jealousy, accuses
her or him in order that the other may be also imprisoned, and so not
become disloyal. Business jealousy, again, is as influential as the attempt to
prevent another from disposing of some hidden booty, or from carrying out
by himself some robbery planned in partnership. These motives are not
always easy to discover but are conceivable. There are also cases, not at all
rare, in which the ordinary man is fully lacking in comprehension of “the
substitute value,” which makes him confess the complicity of his fellow. I
am going to offer just one example, and inasmuch as the persons concerned
are long since dead, will, by way of exception, mention their names and the
improbability of their stories. In 1879 an old man, Blasius Kern, was found
one morning completely snowed over and with a serious wound in the head.

There was no possible suspicion of robbery as motive of the murder,
inasmuch as the man was on his way home drunk, as usual, and it was
supposed that he had fallen down and had smashed his skull. In 1881 a
young fellow, Peter Seyfried, came to court and announced that he had been
hired by Blasius Kern’s daughter, Julia Hauck, and her husband August
Hauck, to kill the old fellow, who had become unendurable through his love
of drink and his endless quarrelsomeness; and accordingly he had done the
deed. He had been promised an old pair of trousers and three gulden, but
they had given him the trousers, not the money, and as all his attempts to
collect payment had failed he divulged the secret of the Hauck people.
When I asked him if he were unaware that he himself was subject to the law
he said, “I don’t care; the others at least will also be punished;—why
haven’t they kept their word.” And this lad was very stupid and
microcephalic, but according to medico-legal opinion, capable of
distinguishing between right and wrong. His statements proved themselves
true to the very last point.
So significantly weak as this in fundamental reliability, very few
confessions will appear to be, but the reasons for confessions, difficult both
to find and to judge, are many indeed. The only way to attain certainty is
through complete and thorough-going knowledge of all the external
conditions, but primarily through sound psychological insight into the
nature of both the confessor and those he accuses. Evidently the first is by
far the more important: what he is beneath the surface, his capacities,
passions, intentions, and purposes, must all be settled if any decision is to
be arrived at as to the advantage accruing to a man by the accusation of
others. For example, the passionate character of some persons may indicate
beyond a doubt that they might find pleasure in suffering provided they
could cause suffering to others at that price. Passion is almost always what
impels men, and what passion in particular lies behind a confession will be
revealed partly by the crime, partly by the relation of the criminals one to
the other, partly by the personality of the new victim. If this passion was
strong enough to deal, if I may use the term, anti-egoistically, it can be
discovered only through the study of its possessor. It may be presupposed
that everybody acts according to his own advantage—the question asks
merely what this advantage is in the concrete, and whether he who seeks it,
seeks it prudently. Even the satisfaction of revenge may be felt as an
advantage if it is more pleasurable than the pain which follows confession

—the matter is one of relative weight and is prudently sought as the
substitution of an immediate and petty advantage for a later and greater one.
Another series of procedures is of importance in determining proof,
where circumstances are denied which have no essential relation to the
crime. They bring the presentation of proof into a bypath so that the
essential problem of evidence is left behind. Then if the denied
circumstance is established as a fact it is falsely supposed that the guilt is so
established. And in this direction many mistakes are frequently made. There
are two suggestive examples. Some years ago there lived in Vienna a very
pretty bachelor girl, a sales-person in a very respectable shop. One day she
was found dead in her room. Inasmuch as the judicial investigation showed
acute arsenic poisoning, and as a tumbler half full of sweetened water and a
considerable quantity of finely powdered arsenic was found on her table,
these two conditions were naturally correlated. From the neighbors it was
learned that the dead girl had for some time been intimate with an unknown
gentleman who visited her frequently, but whose presence was kept as
secret as possible by both. This gentleman, it was said, had called on the
girl on the evening before her death. The police inferred that the man was a
very rich merchant, residing in a rather distant region, who lived peaceably
with his much older wife and therefore kept his illicit relations with the girl
secret. It was further established at the autopsy that the girl was pregnant,
and so the theory was formed that the merchant had poisoned his mistress
and in the examination this deed was set down against him. Now, if the man
had immediately confessed that he knew the dead girl, and stood in intimate
relation with her and that he had called on her the last evening; if he had
asserted perhaps that she was in despair about her condition, had quarreled
with him and had spoken of suicide, etc., then suicide would
unconditionally have had to be the verdict. In any event, he never could
have been accused, inasmuch as there was no additional evidence of
poisoning. But the man conceived the unfortunate notion of denying that he
knew the dead girl or had any relations with her, or that he had ever, even
on that last evening, called on her. He did this clearly because he did not
want to confess a culpable relation to public opinion, especially to his wife.
And the whole question turned upon this denied circumstance. The problem
of evidence was no longer, “Has he killed her,” but “Did he carry on an
intimacy with her.” Then it was proved beyond reasonable doubt through a
long series of witnesses that his visits to the girl were frequent, that he had

been there on the evening before her death, and that there could be no
possible doubt as to his identity. That settled his fate and he was sentenced
to death. If we consider the case psychologically we have to grant that his
denial of having been present might have for motive as much the fact that
he had poisoned the girl, as that he did not want to admit the relation at the
beginning. Later on, when he completely understood the seriousness of his
situation, he thought a change of front too daring and hoped to get on better
by sticking to his story. Now, as we have seen, what was proved was the
fact that he knew and visited the girl; what he was sentenced for was the
murder of the girl.
A similar case, particularly instructive in its development, and especially
interesting because of the significant study (of the suggestibility of
witnesses) of Dr. Von Schrenck-Notzing and Prof. Grashey, kept the whole
of Munich in excitement some years ago. A widow, her grown-up daughter,
and an old servant were stifled and robbed in their home. The suspicion of
the crime fell upon a brick-layer who had once before made a confession
concerning another murder and of whom it was known that some time
before the deed was done he had been building a closet into the house of the
three murdered women. Through various combinations of the facts the
supposition was reached that the mason got entry into the house on the
pretense of examining whether or not the work he had done on the closet
had caused any damage, and had then committed the thieving murder. Now
here again, if the mason had said: “Yes, I was without a job, wanted to get
work, entered the house under the assigned pretense, and appeared to see
about the closet and had myself paid for the apparently repaired
improvement, left the three women unharmed, and they must only after that
have been killed,”—if he had said this, his condemnation would have been
impossible, for all the other testimony was of subordinate importance. Now
suppose the man was innocent, what could he have thought: “I have already
been examined once in a murder case, I found myself in financial
difficulties, I still am in such difficulties—if I admit that I was at the place
of the crime at the time the crime was committed, I will get into serious
trouble, which I won’t, if I deny my presence.” So he really denied having
been in the house or in the street for some time, and inasmuch as this was
shown by many witnesses to be untrue, his presence at the place where the
crime was committed was identified with the unproved fact that he had
committed it, and he was condemned.

I do not assert that either one or the other of these persons was
condemned guiltlessly, or that such “side issues” have no value and ought
not to be proved. I merely point out that caution is necessary in two
directions. First of all, these side issues must not be identified with the
central issue. Their demonstration is only preparatory work, the value of
which must be established cautiously and without prejudice. It may be said
that the feeling of satisfaction with what has been done causes jurists
frequently to forget what must yet be done, or to undervalue it. Further, a
psychological examination must seek out the motives which led or might
have led the accused to deny some point not particularly dangerous to him.
In most cases an intelligible ground for such action can be discovered, and
if the psychologically prior conditions are conceived with sufficient
narrowness to keep us from assuming unconditional guilt, we are at least
called upon to be careful.
This curious danger of identification of different issues as the aim of
presentation of evidence, occurs much more frequently and with
comparatively greater degree in the cases of individual witnesses who are
convinced of the principal issue when a side issue is proved. Suppose a
witness is called on to identify a man as somebody who had stabbed him in
a serious assault, and that he has also to explain whether the quarrel he had
had with this man a short time ago was of importance. If the suspect is
desirous of having the quarrel appear as harmless, and the wounded person
asserts that the quarrel was serious, the latter will be convinced, the moment
his contention may be viewed as true, that his opponent was really the
person who had stabbed him. There is, of course, a certain logical
justification for this supposition, but the psychological difficulty with it is
the fact that this case, like many others, involves the identification of what
is inferred with what is perceived. It is for this reason that the mere fact of
arrest is to most people a conviction of guilt. The witness who had first
identified A as only the probable criminal becomes absolutely convinced of
it when A is presented to him in stripes, even though he knows that A has
been arrested on his own testimony alone. The appearance and the
surroundings of the prisoner influence many, and not merely uneducated
people, against the prisoner, and they think, involuntarily, “If he were not
the one, they would not have him here.”
Section 24. (b) Causation.[129]

If we understand by the term cause the axiom that every change has an
occasion, hence that every event is bound up with a number of conditions
which when lacking in whole or in part would prevent the appearance of the
event, while their presence would compel its appearance, then the whole
business of the criminalist is the study of causes. He must indeed study not
only whether and how crime and criminal are causally related, but also how
their individual elements are bound to each other and to the criminal; and
finally, what causation in the criminal, considered with regard to his
individual characteristics, inevitably led to the commission of the crime.
The fact that we deal with the problem of cause brings us close to other
sciences which have the same task in their own researches; and this is one
of the reasons for the criminalist’s necessary concern with other disciplines.
Of course no earnest criminalist can pursue other studies for their own sake,
he has no time; but he must look about him and study the methods used in
other sciences. In the other sciences we learn method, but not as method,
and that is all that we need. And we observe that the whole problem of
method is grounded on causation. Whether empirically or aprioristically
does not matter. We are concerned solely with causation.
In certain directions our task is next to the historians’ who aim to bring
men and events into definite causal sequence. The causal law is indubitably
the ideal and only instructive instrument in the task of writing convincing
history, and it is likewise without question that the same method is
specifically required in the presentation of evidence. Thus: “This is the
causal chain of which the last link is the crime committed by A. Now I
present the fact of the crime and include only those events which may be
exclusively bound up with A’s criminality—and the crime appears as
committed. Now again, I present the fact of the crime and exclude all those
events which can without exception be included only if A is not a criminal
—and there is no crime.”[130]
Evidently the finding of causes involves, according to the complexities
of the case, a varying number of subordinate tasks which have to be
accomplished for each particular incident, inasmuch as each suspicion, each
statement pro or con has to be tested. The job is a big one but it is the only
way to absolute and certain success, provided there is no mistake in the
work of correlating events. As Schell says: “Of all the observed identities of
effect in natural phenomena only one has the complete strength of
mathematical law—the general law of causation. The fact that everything

that has a beginning has a cause is as old as human experience.” The
application of this proposition to our own problem shows that we are not to
turn the issue in any unnecessary direction, once we are convinced that
every phenomenon has its occasion. We are, on the contrary, to demonstrate
this occasion and to bring it into connection with every problem set by the
testimony at any moment. In most cases the task, though not rigidly
divided, is double and its quality depends upon the question whether the
criminal was known from the beginning or not. The duality is foremost, and
lasts longest if only the deed itself is known, and if the judge must limit
himself entirely to its sole study in order to derive from it its objective
situation.
The greatest mistakes in a trial occur when this derivation of the
objective situation of the crime is made unintelligently, hastily or carelessly,
and conversely the greatest successes are due to its correct rendering. But
such a correct rendering is no more than the thorough-going use of the
principle of causality. Suppose a great crime has been committed and the
personality of the criminal is not revealed by the character of the crime. The
mistake regularly made in such a case is the immediate and superficial
search for the personality of the criminal instead of what should properly
proceed—the study of the causal conditions of the crime. For the causal law
does not say that everything which occurs, taken as a whole and in its
elements, has one ground—that would be simply categorical emptiness.
What is really required is an efficient and satisfying cause. And this is
required not merely for the deed as a whole but for every single detail.
When causes are found for all of these they must be brought together and
correlated with the crime as described, and then integrated with the whole
series of events.
The second part of the work turns upon the suspicion of a definite person
when his own activity is interpolated as a cause of the crime. Under some
conditions again, the effect of the crime on the criminal has to be examined,
i.e., enrichment, deformation, emotional state, etc. But the evidence of guilt
is established only when the crime is accurately and explicitly described as
the inevitable result of the activity of the criminal and his activity only. This
systematic work of observing and correlating every instant of the supposed
activities of the accused (once the situation of the crime is defined as
certainly as possible), is as instructive as it is promising of success. It is the
one activity which brings us into touch with bare perception and its

reproduction. “All inference with regard to facts appears to depend upon the
relation of cause to effect; by virtue of this relation alone may we rely upon
the evidence of our memories and our senses.”[131] Hume illustrates this
remark with the following example: If a clock or some other machine is
found on a desert island, the conclusion is drawn that men are or were on
the island. The application is easy enough. The presence of a clock, the
presence of a three-cornered wound is perceived by the senses—that men
were there, that the wound was made with a specific kind of instrument, is a
causal inference. Simple as this proposition of Hume’s is, it is of utmost
importance in the law because of the permanent and continually renewed
problems: What is the effect in this case? What is the cause? Do they
belong together? Remembering that these questions make our greatest tasks
and putting them, even beyond the limit of disgust, will save us from grave
errors.
There is another important condition to which Hume calls attention and
which is interpreted by his clever disciple Meinong. It is a fact that without
the help of previous experience no causal nexus can be referred to an
observation, nor can the presence of such be discovered in individual
instances. It may be postulated only. A cause is essentially a complex in
which every element is of identical value. And this circumstance is more
complicated than it appears to be, inasmuch as it requires reflection to
distinguish whether only one or more observations have been made. Strict
self-control alone and accurate enumeration and supervision will lead to a
correct decision as to whether one or ten observations have been made, or
whether the notion of additional observations is not altogether illusory.
This task involves a number of important circumstances. First of all must
be considered the manner in which the man on the street conceives the
causal relation between different objects. The notion of causality, as
Schwarz[132] shows, is essentially foreign to the man on the street. He is led
mainly by the analogy of natural causality with that of human activity and
passivity, e.g., the fire is active with regard to water, which simply must
sizzle passively. This observation is indubitably correct and significant, but
I think Schwarz wrong to have limited his description to ordinary people; it
is true also of very complex natures. It is conceivable that external
phenomena shall be judged in analogy with the self, and inasmuch as the
latter often appears to be purely active, it is also supposed that those natural
phenomena which appear to be especially active are really so.

In addition, many objects in the external world with which we have a
good deal to do, and are hence important, do as a matter of fact really
appear to be active—the sun, light, warmth, cold, the weather, etc., so that
we assign activity and passivity only according to the values the objects
have for us. The ensuing mistake is the fact that we overlook the
alternations between activity and passivity, or simply do not make the study
such alternations require; yet the correct apportionment of action and
reaction is, for us, of greatest importance. In this regard, moreover, there is
always the empty problem as to whether two things may stand in causal
relation,—empty, because the answer is always yes. The scientific and
practical problem is as to whether there exists an actual causal nexus. The
same relation occurs in the problem of reciprocal influences. No one will
say, for example, that any event exercises a reciprocal influence on the sun,
but apart from such relatively few cases it would not only be supposed that
A is the cause of the effect B, but also that B might have reciprocally
influenced A. Regard for this possibility may save one from many mistakes.
One important source of error with regard to cause and effect lies in the
general and profound supposition that the cause must have a certain
similarity to the effect. So Ovid, according to J. S. Mill, has Medea brew a
broth of long-lived animals; and popular superstitions are full of such
doctrine. The lung of a long-winded fox is used as a cure for asthma, the
yarrow is used to cure jaundice, agaricos is used for blisters, aristolochia
(the fruit of which has the form of a uterus) is used for the pains of child-
birth, and nettle-tea for nettle-rash. This series may be voluntarily increased
when related to the holy patron saints of the Catholic Church, who are
chosen as protectors against some especial condition or some specific
difficulty because they at one time had some connection with that particular
matter. So the holy Odilia is the patron saint for diseases of the eye, not
because she knew how to cure the eyes, but because her eyes were put out
with needles. The thief Dismas is the patron of the dying because we know
nothing about him save that he died with Christ. St. Barbara, who is
pictured together with a tower in which she was imprisoned, and which was
supposed to be a powder house, has become the patron saint of artillery. In
the same manner St. Nicholas is, according to Simrock, the patron of sailors
because his name resembles Nichus, Nicor, Nicker, which is the name of
the unforgotten old German sea-deity.

Against such combinations, external and unjustified, not even the most
educated and skilful is safe. Nobody will doubt that he is required to make
considerable effort in his causal interpretation because of the sub-conscious
influence of such similarities. The matter would not be so dangerous, all in
all, because such mistakes may be easily corrected and the attention of
people may be called to the inadequacy of such causation—but the reason
for this kind of correlations is rarely discovered. Either people do not want
to tell it because they instinctively perceive that their causal interpretation
cannot be justified, or they cannot even express it because the causal
relation had been assumed only subconsciously, and they are hence unaware
of the reasons for it and all the more convinced that they are right. So for
example, an intelligent man told me that he suspected another of a murder
because the latter’s mother died a violent death. The witness stuck to his
statement: “the man who had once had something to do with killing must
have had something to do with this killing.” In a similar manner, a whole
village accused a man of arson because he was born on the night on which a
neighboring village burned down. Here, however, there was no additional
argument in the belief that his mother had absorbed the influence of the fire
inasmuch as the latter was told that there had been a fire only after the child
was born. “He once had something to do with fire,” was the basis of the
judgment, also in this case.
There are innumerable similar examples which, with a large number of
habitual superstitious presuppositions, make only false causality. Pearls
mean tears because they have similar form; inasmuch as the cuckoo may
not without a purpose have only two calls at one time and ten or twenty at
another, the calls must mean the number of years before death, before
marriage, or of a certain amount of money, or any other countable thing.
Such notions are so firmly rooted in the peasantry and in all of us, that they
come to the surface, whether consciously or unconsciously, and influence
us more than we are accustomed to suppose they do. Whenever anybody
assures us that he is able to assert absolutely, though not altogether prove a
thing, this assurance may be variously grounded, but not rarely it is no more
than one of these false correlations. Schopenhauer has said, that
“motivation is causality seen from within,”—and one may add conversely
that causality is motivation seen from without. What is asserted must be
motivated, and that is done by means of causality—if no real ultimate cause
is found a false, superficial and insufficient one is adopted, inasmuch as we

ever strive to relate things causally, in the knowledge that, otherwise, the
world would be topsy-turvy. “Everywhere,” says Stricker, “we learn that
men who do not associate their experiences according to right cause are
badly adapted to their environment; the pictures of artists are disliked, the
laborer’s work does not succeed; the tradesman loses his money, and the
general his battle.” And we may add, “The criminalist his case.” For
whoever seeks the reason for a lost case certainly will find it in the
ignorance of the real fact and in the incorrect coördination of cause and
effect. The most difficult thing in such coördination is not that it has to be
tested according to the notion one has for himself of the chain of events; the
difficulty lies in the fact that the point of view and mental habits of the man
who is suspected of the effects must be adopted. Without this the causal
relations as they are arrived at by the other can never be reached, or
different results most likely ensue.
The frequency of mistakes like those just mentioned is well known. They
affect history. Even La Rochefoucauld was of the opinion that the great and
splendid deeds which are presented by statesmen as the outcome of far-
reaching plans are, as a rule, merely the result of inclination and passion.
This opinion concerns the lawyer’s task also, for the lawyer is almost
always trying to discover the moving, great, and unified plan of each crime,
and in order to sustain such a notion, prefers to perfect a large and difficult
theoretic construction, rather than to suppose that there never was a plan,
but that the whole crime sprang from accident, inclination, and sudden
impulse. The easiest victims in this respect are the most logical and
systematic lawyers; they merely presuppose, “I would not have done this”
and forget that the criminal was not at all so logical and systematic, that he
did not even work according to plan, but simply followed straying impulses.
Moreover, a man may have determined his causal connections correctly,
yet have omitted many things, or finally have made a voluntary stop at
some point in his work, or may have carried the causal chain unnecessarily
far. This possibility has been made especially clear by J. S. Mill, who
showed that the immediately preceding condition is never taken as cause.
When we throw a stone into the water we call the cause of its sinking its
gravity, and not the fact that it has been thrown into the water. So again,
when a man falls down stairs and breaks his foot, in the story of the fall the
law of gravity is not mentioned; it is taken for granted. When the matter is
not so clear as in the preceding examples, such facts are often the cause of

important misunderstandings. In the first case, where the immediately
preceding condition is not mentioned, it is the inaccuracy of the expression
that is at fault, for we see that at least in scientific form, the efficient cause
is always the immediately preceding condition. So the physician says, “The
cause of death was congestion of the brain in consequence of pressure
resulting from extravasation of the blood.” And he indicates only in the
second line that the latter event resulted from a blow on the head. In a
similar manner the physicist says that the board was sprung as a
consequence of the uneven tension of the fibers; he adds only later that this
resulted from the warmth, which again is the consequence of the direct
sunlight that fell on the board. Now the layman had in both cases omitted
the proximate causes and would have said in case 1, “The man died because
he was beaten on the head,” and in case 2, “The board was sprung because
it lay in the sun.” We have, therefore, to agree to the surprising fact that the
layman skips more intermediaries than the professional, but only because
either he is ignorant of or ignores the intervening conditions. Hence, he is
also in greater danger of making a mistake through omission.
Inasmuch as the question deals only with the scarcity of correct
knowledge of proximate causes, we shall set aside the fact that lawyers
themselves make such mistakes, which may be avoided only by careful
self-training and cautious attention to one’s own thoughts. But we have at
the same time to recognize how important the matter is when we receive
long series of inferences from witnesses who give expression only to the
first and the last deduction. If we do not then examine and investigate the
intermediary links and their justification, we deserve to hear extravagant
things, and what is worse, to make them, as we do, the foundation of further
inference. And once this is done no man can discover where the mistake
lies.
If again an inference is omitted as self-evident (cf. the case of gravity, in
falling down stairs) the source of error and the difficulty lies in the fact that,
on the one hand, not everything is as self-evident as it seems; on the other,
that two people rarely understand the same thing by “self-evident,” so that
what is self-evident to one is far from so to the other. This difference
becomes especially clear when a lawyer examines professional people who
can imagine offhand what is in no sense self-evident to persons in other
walks of life. I might cite out of my own experience, that the physicist
Boltzmann, one of the foremost of living mathematicians, was told once

upon a time that his demonstrations were not sufficiently detailed to be
intelligible to his class of non-professionals, so that his hearers could not
follow him. As a result, he carefully counted the simplest additions or
interpolations on the blackboard, but at the same time integrated them, etc.,
in his head, a thing which very few people on earth can do. It was simply an
off-hand matter for this genius to do that which ungenial mortals can not.
This appears in a small way in every second criminal case. We have only
to substitute the professionals who appear as witnesses. Suppose, e.g., that a
hunter is giving testimony. He will omit to state a group of correlations;
with regard to things which are involved in his trade, he will reach his
conclusion with a single jump. Then we reach the fatal circle that the
witness supposes that we can follow him and his deductions, and are able to
call his attention to any significant error, while we, on the other hand,
depend on his professional knowledge, and agree to his leaping inferences
and allow his conclusions to pass as valid without knowing or being able to
test them.
The notion of “specialist” or “professional” must be applied in such
instances not only to especial proficients in some particular trade, but also
to such people as have by accident merely, any form of specialized
knowledge, e.g., knowledge of the place in which some case had occurred.
People with such knowledge present many a thing as self-evident that can
not be so to people who do not possess the knowledge. Hence, peasants
who are asked about some road in their own well known country reply that
it is “straight ahead and impossible to miss” even when the road may turn
ten times, right and left.
Human estimates are reliable only when tested and reviewed at each
instant; complicated deductions are so only when deduction after deduction
has been tested, each in itself. Lawyers must, therefore, inevitably follow
the rule of requiring explication of each step in an inference—such a
requirement will at least narrow the limits of error.
The task would be much easier if we were fortunate enough to be able to
help ourselves with experiments. As Bernard[133] says, “There is an absolute
determinism in the existential conditions of natural phenomena, as much in
living as in non-living bodies. If the condition of any phenomenon is
recognized and fulfilled the phenomenon must occur whenever the
experimenter desires it.” But such determination can be made by lawyers in

rare cases only, and to-day the criminalist who can test experimentally the
generally asserted circumstance attested by witnesses, accused, or experts,
is a rarissima avis. In most cases we have to depend on our experience,
which frequently leaves us in difficulties if we fail thoroughly to test it.
Even the general law of causation, that every effect has its cause, is
formulated, as Hume points out, only as a matter of habit. Hume’s
important discovery that we do not observe causality in the external world,
demonstrates only the difficulty of the interpretation of causality. The
weakness of his doctrine lies in his assertion that the knowledge of causality
may be obtained through habit because we perceive the connection of
similars, and the understanding, through habit, deduces the appearance of
the one from that of the other. These assertions of the great thinker are
certainly correct, but he did not know how to ground them. Hume teaches
the following doctrine:
The proposition that causes and effects are recognized, not by the
understanding but because of experience, will be readily granted if we think
of such things as we may recollect we were once altogether unacquainted
with. Suppose we give a man who has no knowledge of physics two smooth
marble plates. He will never discover that when laid one upon the other
they are hard to separate. Here it is easily observed that such properties can
be discovered only through experience. Nobody, again, has the desire to
deceive himself into believing that the force of burning powder or the
attraction of a magnet could have been discovered a priori. But this truth
does not seem to have the same validity with regard to such processes as we
observed almost since breath began. With regard to them, it is supposed that
the understanding, by its own activity, without the help of experience can
discover causal connections. It is supposed that anybody who is suddenly
sent into the world will be able at once to deduce that a billiard ball will
pass its motion on to another by a push.
But that this is impossible to derive a priori is shown through the fact
that elasticity is not an externally recognizable quality, so that we may
indeed say that perhaps no effect can be recognized unless it is experienced
at least once. It can not be deduced a priori that contact with water makes
one wet, or that an object responds to gravity when held in the hand, or that
it is painful to keep a finger in the fire. These facts have first to be
experienced either by ourselves or some other person. Every cause, Hume
argues therefore, is different from its effect and hence can not be found in

the latter, and every discovery or representation of it a priori must remain
voluntary. All that the understanding can do is to simplify the fundamental
causes of natural phenomena and to deduce the individual effects from a
few general sources, and that, indeed, only with the aid of analogy,
experience, and observation.
But then, what is meant by trusting the inference of another person, and
what in the other person’s narrative is free from inference? Such trust
means, to be convinced that the other has made the correct analogy, has
made the right use of experience, and has observed events without
prejudice. That is a great deal to presuppose, and whoever takes the trouble
of examining however simple and short a statement of a witness with regard
to analogy, experience, and observation, must finally perceive with fear
how blindly the witness has been trusted. Whoever believes in knowledge a
priori will have an easy job: “The man has perceived it with his mind and
reproduced it therewith; no objection may be raised to the soundness of his
understanding; ergo, everything may be relied upon just as he has testified
to it.” But he who believes in the more uncomfortable, but at least more
conscientious, skeptical doctrine, has, at the minimum, some fair reason for
believing himself able to trust the intelligence of a witness. Yet he neither is
spared the task of testing the correctness of the witness’s analogy,
experience and observation.
Apriorism and skepticism define the great difference in the attitude
toward the witness. Both skeptic and apriorist have to test the desire of the
witness to lie, but only the skeptic needs to test the witness’s ability to tell
the truth and his possession of sufficient understanding to reproduce
correctly; to examine closely his innumerable inferences from analogy,
experience and observation. That only the skeptic can be right everybody
knows who has at all noticed how various people differ in regard to
analogies, how very different the experiences of a single man are, both in
their observation and interpretation. To distinguish these differences clearly
is the main task of our investigation.
There are two conditions to consider. One is the strict difference between
what is causally related and its accidental concomitants,—a difference with
regard to which experience is so often misleading, for two phenomena may
occur together at the same time without being causally connected. When a
man is ninety years old and has observed, every week in his life, that in his
part of the country there is invariably a rainfall every Tuesday, this

observation is richly and often tested, yet nobody will get the notion of
causally connecting Tuesday and rain—but only because such connection
would be regarded as generally foolish. If the thing, however, may be
attributed to coincidence with a little more difficulty, then it becomes easier
to suppose a causal connection; e.g., as when it rains on All-souls day, or at
the new moon. If the accidental nature of the connection is still less
obvious, the observation becomes a much-trusted and energetically
defended meteorological law. This happens in all possible fields, and not
only our witnesses but we ourselves often find it very difficult to distinguish
between causation and accident. The only useful rule to follow is to
presuppose accident wherever it is not indubitably and from the first
excluded, and carefully to examine the problem for whatever causal
connection it may possibly reveal. “Whatever is united in any perception
must be united according to a general rule, but a great deal more may be
present without having any causal relation.”
The second important condition was mentioned by Schopenhauer:[134]
“As soon as we have assigned causal force to any great influence and
thereby recognized that it is efficacious, then its intensification in the face
of any resistance according to the intensity of the resistance will produce
finally the appropriate effect. Whoever cannot be bribed by ten dollars, but
vacillates, will be bribed by twenty-five or fifty.”
This simple example may be generalized into a golden rule for lawyers
and requires them to test the effect of any force on the accused at an earlier
time in the latter’s life or in other cases,—i.e., the early life of the latter can
never be studied with sufficient care. This study is of especial importance
when the question is one of determining the culpability of the accused with
regard to a certain crime. We have then to ask whether he had the motive in
question, or whether the crime could have been of interest to him. In this
investigation the problem of the necessary intensity of the influence in
question need not, for the time, be considered; only its presence needs to be
determined. That it may have disappeared without any demonstrable special
reason is not supposable, for inclinations, qualities, and passions are rarely
lost; they need not become obvious so long as opportunity and stimulus are
absent, and they may be in some degree suppressed, but they manifest
themselves as soon as—Schopenhauer’s twenty-five or fifty dollars appear.
The problem is most difficult when it requires the conversion of certain
related properties, e.g., when the problem is one of suspecting a person of

murderous inclination, and all that can be shown in his past life is the
maltreatment of animals. Or again, when cruelty has to be shown and all
that is established is great sensuality. Or when there is no doubt about
cruelty and the problem is one of supposing intense avarice. These
questions of conversion are not especially difficult, but when it must be
explained to what such qualities as very exquisite egoism, declared envy,
abnormal desire for honor, exaggerated conceit, and great idleness may lead
to, the problem requires great caution and intensive study.
Section 25. (c) Skepticism.

Hume’s skepticism is directly connected with the subject of the
preceding chapter, but wants still a few words for itself. Though it is not the
lawyer’s problem to take an attitude with regard to philosophical
skepticism, his work becomes essentially easier through the study of
Hume’s doctrines.
According to these, all we know and infer, in so far as it is
unmathematical, results from experience, and our conviction of it and our
reasoning about it, means by which we pass the bounds of sense-perception,
depend on sensation, memory and inference from causation. Our knowledge
of the relation of cause and effect results also from experience, and the
doctrine, applied to the work of the criminalist, may be formulated as
follows: “Whatever we take as true is not an intellectual deduction, but an
empirical proposition.” In other words, our presuppositions and inferential
knowledge depend only upon those innumerable repetitions of events from
which we postulate that the event recurred in the place in question. This sets
us the problem of determining whether the similar cases with which we
compare the present one really are similar and if they are known in
sufficiently large numbers to exclude everything else.
Consider a simple example. Suppose somebody who had traveled all
through Europe, but had never seen or heard of a negro, thought about the
pigmentation of human beings: neither all his thinking nor the assistance of
all possible scientific means can lead him to the conclusion that there are
also black people—that fact he can only discover, not think out. If he
depends only on experience, he must conclude from the millions of
examples he has observed that all human beings are white. His mistake
consists in the fact that the immense number of people he has seen belong

to the inhabitants of a single zone, and that he has failed to observe the
inhabitants of other regions.
In our own cases we need no examples, for I know of no inference which
was not made in the following fashion: “The situation was so in a hundred
cases, it must be so in this case.” We rarely ask whether we know enough
examples, whether they were the correct ones, and whether they were
exhaustive. It will be no mistake to assert that we lawyers do this more or
less consciously on the supposition that we have an immense collection of
suggestive a priori inferences which the human understanding has brought
together for thousands of years, and hence believe them to be indubitably
certain. If we recognize that all these presuppositions are compounds of
experience, and that every experience may finally show itself to be
deceptive and false; if we recognize how the actual progress of human
knowledge consists in the addition of one hundred new experiences to a
thousand old ones, and if we recognize that many of the new ones
contradict the old ones: if we recognize the consequence that there is no
reason for the mathematical deduction from the first to the hundred-and-
first case, we shall make fewer mistakes and do less harm. In this regard,
Hume[135] is very illuminative.
According to Masaryk,[136] the fundamental doctrine of Humian
skepticism is as follows: “If I have had one and the same experience ever so
often, i.e., if I have seen the sun go up 100 times, I expect to see it go up the
101st time the next day, but I have no guarantee, no certainty, no evidence
for this belief. Experience looks only to the past, not to the future. How can
I then discover the 101st sunrise in the first 100 sunrises? Experience
reveals in me the habit to expect similar effects from similar circumstances,
but the intellect has no share in this expectation.”
All the sciences based on experience are uncertain and without logical
foundation, even though their results, as a whole and in the mass, are
predictable. Only mathematics offers certainty and evidence. Therefore,
according to Hume, sciences based on experience are unsafe because the
recognition of causal connection depends on the facts of experience and we
can attain to certain knowledge of the facts of experience only on the
ground of the evident relation of cause and effect.
This view was first opposed by Reid, who tried to demonstrate that we
have a clear notion of necessary connection. He grants that this notion is not

directly attained either from external or internal experience, but asserts its
clearness and certainty in spite of that fact. Our mind has the power to make
its own concepts and one such concept is that of necessary connection. Kant
goes further and says that Hume failed to recognize the full consequences
of his own analysis, for the notion of causality is not the only one which the
understanding uses to represent a priori the connection of objects. And
hence, Kant defines psychologically and logically a whole system of similar
concepts. His “Critique of Pure Reason” is intended historically and
logically as the refutation of Hume’s skepticism. It aims to show that not
only metaphysics and natural science have for their basis “synthetic
judgments a priori,” but that mathematics also rests on the same foundation.
Be that as it may, our task is to discover the application of Hume’s
skepticism to our own problems in some clear example. Let us suppose that
there are a dozen instances of people who grew to be from 120 to 140 years
old. These instances occur among countless millions of cases in which such
an age was not reached. If this small proportion is recognized, it justifies the
postulate that nobody on earth may attain to 150 years. But now it is known
that the Englishman Thomas Parr got to be 152 years old, and his
countryman Jenkins was shown, according to the indubitable proofs of the
Royal Society, to be 157 years old at least (according to his portrait in a
copper etching he was 169 years old). Yet as this is the most that has been
scientifically proved I am justified in saying that nobody can grow to be
200 years old. Nevertheless because there are people who have attained the
age of 180 to 190 years, nobody would care to assert that it is absolutely
impossible to grow so old. The names and histories of these people are
recorded and their existence removes the great reason against this
possibility.
We have to deal, then, only with greater or lesser possibilities and agree
with the Humian idea that under similar conditions frequency of occurrence
implies repetition in the next instance. Contrary evidence may be derived
from several so-called phenomena of alternation. E. g., it is a well known
fact that a number in the so-called Little Lottery, which has not been drawn
for a long time, is sure finally to be drawn. If among 90 numbers the
number 27 has not turned up for a long time its appearance becomes more
probable with every successive drawing. All the so-called mathematical
combinations of players depend on this experience, which, generalized,
might be held to read: the oftener any event occurs (as the failure of the

number 27 to be drawn) the less is the probability of its recurrence (i.e., it
becomes more probable that 27 will be drawn)—and this seems the contrary
of Hume’s proposition.
It may at first be said that the example ought to be put in a different
form, i.e., as follows: If I know that a bag contains marbles, the color of
which I do not know, and if I draw them one by one and always find the
marble I have drawn to be white, the probability that the bag contains only
white ones grows with every new drawing that brings a white marble to
light. If the bag contains 100 marbles and 99 have been drawn out, nobody
would suppose that the last one would be red—for the repetition of any
event increases the probability of its occurrence.
This formulation proves nothing, inasmuch as a different example does
not contradict the one it is intended to substitute. The explanation is rather
as follows: In the first case there is involved the norm of equal possibilities,
and if we apply the Humian principle of increase of probability through
repetition, we find it effective in explaining the example. We have known
until now always that the numbers in the Little Lottery are drawn equally,
and with approximate regularity,—i.e., none of the single numbers is drawn
for a disproportionately long time. And as this fact is invariable, we may
suppose that every individual number would appear with comparative
regularity. But this explanation is in accord with Hume’s doctrine.
The doctrine clarifies even astonishing statistical miracles. We know,
e.g., that every year there come together in a certain region a large number
of suicides, fractures of arms and legs, assaults, unaddressed letters, etc.
When, now, we discover that the number of suicides in a certain semester is
significantly less than the number in the same semester of another year, we
will postulate that in the next half-year a comparatively larger number of
suicides will take place so that the number for the whole year will become
approximately equal. Suppose we say: “There were in the months of
January, February, March, April, May and June an average of x cases.
Because we have observed the average to happen six times, we conclude
that it will not happen in the other months but that instead, x+y cases will
occur in those months, since otherwise the average annual count will not be
attained.” This would be a mistaken abstraction of the principle of equal
distribution from the general Humian law, for the Humian law applied to
this case indicates: “For a long series of years we have observed that in this

region there occur annually so and so many suicides; we conclude therefore
that in this year also there will occur a similar number of suicides.”
The principle of equal distribution presents itself therefore as a
subordinate rule which must not be separated from the principal law. It is,
indeed, valid for the simplest events. When I resolve to walk in x street,
which I know well, and when I recall whether to-day is Sunday or a week
day, what time it is and what the weather is like, I know quite accurately
how the street will look with regard to the people that may be met there,
although a large number of these people have chosen the time accidentally
and might as well have passed through another street. If, for once, there
were more people in the street, I should immediately ask myself what
unusual event had taken place.
One of my cousins who had a good deal of free time to dispose of, spent
it for several months, with the assistance of his comrade, in counting the
number of horses that passed daily, in the course of two hours, by a café
they frequented. The conscientious and controlled count indicated that
every day there came one bay horse to every four. If then, on any given day,
an incommensurably large number of brown, black, and tawny horses came
in the course of the first hour, the counters were forced to infer that in the
next 60 minutes horses of a different color must come and that a greater
number of bays must appear in order to restore the disturbed equilibrium.
Such an inference is not contradictory to the Humian proposition. At the
end of a series of examinations the counters were compelled to say,
“Through so many days we have counted one bay to every four horses; we
must therefore suppose that a similar relationship will be maintained the
next day.”
So, the lawyer, too, must suppose, although we lawyers have nothing to
do with figures, that he knows nothing a priori, and must construct his
inferences entirely from experience. And hence we must agree that our
premises for such inferences are uncertain, and often subject to revision,
and often likely, in their application to new facts, to lead to serious
mistakes, particularly if the number of experiences from which the next
moment is deduced, are too few; or if an unknown, but very important
condition is omitted.
These facts must carefully be kept in mind with reference to the
testimony of experts. Without showing ourselves suspicious, or desirous of

confusing the professional in his own work, we must consider that the
progress of knowledge consists in the collection of instances, and anything
that might have been normal in 100 cases, need not in any sense be so when
1000 cases are in question. Yesterday the norm may have been subject to no
exception; to-day exceptions are noted; and to-morrow the exception has
become the rule.
Hence, rules which have no exceptions grow progressively rarer, and
wherever a single exception is discovered the rule can no longer be held as
normative. Thus, before New Holland was discovered, all swans were
supposed to be white, all mammals incapable of laying eggs; now we know
that there are black swans and that the duck-bill lays eggs. Who would have
dared to assert before the discovery of the X-ray that light can penetrate
wood, and who, especially, has dared to make generalizations with regard to
the great inventions of our time which were not afterwards contradicted by
the facts? It may be that the time is not too far away in which great, tenable
and unexceptionable principles may be posited, but the present tendency is
to beware of generalizations, even so far as to regard it a sign of scientific
insight when the composition of generally valid propositions is made with
great caution. In this regard the great physicians of our time are excellent
examples. They hold: “whether the phenomenon A is caused by B we do not
know, but nobody has ever yet seen a case of A in which the precedence of
B could not be demonstrated.” Our experts should take the same attitude in
most cases. It might be more uncomfortable for us, but certainly will be
safer; for if they do not take that attitude we are in duty bound to
presuppose in our conclusions that they have taken it. Only in this wise, by
protecting ourselves against apparently exceptionless general rules, can our
work be safely carried on.
This becomes especially our duty where, believing ourselves to have
discovered some generally valid rule, we are compelled to draw conclusions
without the assistance of experts. How often have we depended upon our
understanding and our “correct” a priori method of inference, where that
was only experience,—and such poor experience! We lawyers have not yet
brought our science so far as to be able to make use of the experience of our
comrades with material they have reviewed and defined in writing. We have
bothered a great deal about the exposition of some legal difficulty, the
definition of some judicial concept, but we have received little instruction
or tradition concerning mankind and its passions. Hence, each one has to

depend on his own experience, and that is supposed to be considerable if it
has a score of years to its back, and is somewhat supplemented by the
experience, of others. In this regard there are no indubitable rules;
everybody must tell himself, “I have perhaps never experienced this fact,
but it may be that a thousand other people have seen it, and seen it in a
thousand different ways. How then, and whence, my right to exclude every
exception?”
We must never forget that every rule is shattered whenever any single
element of the situation is unknown, and that happens very easily and
frequently. Suppose that I did not have full knowledge of the nature of
water, and walked on terra firma to the edge of some quiet, calm pool.
When now I presume: water has a body, it has a definite density, it has
consistency, weight, etc., I will also presume that I may go on walking over
its surface just as over the surface of the earth,—and that, simply because I
am ignorant of its fluidity and its specific gravity. Liebman[137] summarizes
the situation as follows. The causal nexus, the existential and objective
relation between lightning and thunder, the firing of powder and the
explosion, are altogether different from the logical nexus, i.e. the mere
conceptual connection between antecedent and consequent in deduction.
This constitutes the well known kernel of Humian skepticism. We must
keep in mind clearly that we never can know with certainty whether we are
in possession of all the determining factors of a phenomenon, and hence we
must adhere to the only unexceptionable rule: Be careful about making
rules that admit of no exceptions. There is still another objection to discuss,
i.e. the mathematical exception to Humian skepticism. It might be held that
inasmuch as the science of justice is closely related in many ways to
mathematics, it may permit of propositions a priori. Leibnitz already had
said, “The mathematicians count with numbers, the lawyers with ideas,—
fundamentally both do the same thing.” If the relationship were really so
close, general skepticism about phenomenal sciences could not be applied
to the legal disciplines. But we nowadays deal not with concepts merely,
and in spite of all obstruction, Leibnitz’s time has passed and the realities of
our profession, indeed its most important object, the human being itself,
constitute an integrating part of our studies. And the question may be still
further raised whether mathematics is really so exempt from skepticism.
The work of Gauss, Lobatschewski, Bolyai, Lambert, would make the
answer negative.

Let us, for once, consider what significance mathematical postulates
have. When Pythagoras discovered his proposition in such a way that he
first drew a right-angled triangle and then built a square on each of the
sides, and finally measured the area of each and compared them, he must at
first have got the notion that that also might be merely accidental. If he had
made the construction 10 or 100 times with various triangles and these had
resulted always identically, only then might he have been justified in saying
that he had apparently discovered a theorem. But then his process was just
as thoroughly experiential as that of a scientist who says that a bird has
never yet been observed to give birth to living young, and that hence all
birds lay eggs.
But Pythagoras did not proceed in this experiential manner in the
discovery of his theorem. He constructed and he counted, and when he did
that he acted on postulates: “If this is a right-angled triangle and if that be a
square, so,”—and this is just what is done in every science. The general
propositions are, “If the relations remain the same as formerly the moon
must rise to-morrow at such and such a time.” “If this step in a deduction is
not false, if it is well grounded at this point, if it really refers to x, it
follows....” In his procedures the criminalist does exactly the same thing.
What he must be skeptical about is the postulates from which he starts.
Section 26. (d) The Empirical Method in the Study of Cases.

Properly to bound our discussion of Humian skepticism, a few words
have to be said concerning the empirical method of the sciences. We will
call those laws purely empirical which, in the study of nature, yield
regularities that are demonstrated by observation and experiment, but upon
which little or no reliance is placed with regard to cases which differ
considerably from the observed. The latter is done because no reason is
seen for the existence of such laws. The empirical rule is, therefore, no final
law, but is capable of explaining, especially when true, e.g., the succession
of a certain condition of weather from certain meteorological signs, the
improvement of species through crossing, the fact that some alloys are
harder than their components, and so on. Or, to choose examples from our
own field, jurisprudence may assert as empirical law that a murderer is a
criminal who has gone unpunished for his earlier crimes; that all gamblers
show such significant resemblances; that the criminal who has soiled his
hands with blood in some violent crime was accustomed to wipe them on

the underside of a table; that the slyest person generally perpetrates some
gross stupidity after committing a serious crime, and so renders discovery
simpler; that lust and cruelty have a certain relation; that superstition plays
a great rôle in crime, etc.
It is of exceeding importance to establish such purely empiric laws in
our science, which has done little with such matters because, owing to
scanty research into most of them, we need these laws. We know
approximately that this and that have come to light so and so often, but we
have not reduced to order and studied systematically the cases before us,
and we dare not call this knowledge natural law because we have subjected
it to no inductive procedure. “The reference of any fact discovered by
experience to general laws or rules we call induction. It embraces both
observation and deduction.” Again, it may be defined as “the generalization
or universalization of our experiences; and inference that a phenomenon
occurring x times will invariably occur when the essential circumstances
remain identical. The earliest investigators started with the simplest
inductions,—that fire burns, that water flows downward,—so that new,
simple truths were continually discovered. This is the type of scientific
induction and it requires further, the addition of certainty and accuracy.”[138]
The foregoing might have been written expressly for us lawyers, but we
have to bear in mind that we have not proceeded in our own generalizations
beyond “fire burns, water flows downward.” And such propositions we
have only derived from other disciplines. Those derived from our own are
very few indeed, and to get more we have very far to go. Moreover, the
laws of experience are in no way so certain as they are supposed to be, even
when mathematically conceived. The empirical law is established that the
sum of the three angles of a triangle is equal to two right angles. And yet
nobody, ever since the science of surveying has been invented, has
succeeded in discovering 180 degrees in any triangle. Now then, when even
such things, supposed ever since our youth to be valid, are not at all true, or
true theoretically only, how much more careful must we be in making
inferences from much less certain rules, even though we have succeeded in
using them before in many analogous cases? The activity of a criminalist is
of far too short duration to permit him to experience any more than a very
small portion of the possibilities of life, and suggestions from foreign
sources are very rare. The situation is different in other disciplines. “Our
experience,” says James Sully,[139] “enables us to express a number of

additional convictions. We can predict political changes and scientific
developments, and can conceive of the geographical conditions at the north
pole.” Other disciplines are justified to assert such additional propositions,
but is ours? A man may have dealt for years with thieves and swindlers, but
is he justified in deducing from the inductions made in his experience, the
situation of the first murderer he deals with? Is he right in translating things
learned by dealing with educated people to cases where only peasants
appear? In all these cases what is needed in making deductions is great
caution and continual reminder to be very careful, for our work here still
lacks the proper material. In addition we have to bear in mind that induction
is intimately related to analogy. According to Lipps[140] the ground of one is
the ground of the other; they both rest on the same foundation. “If I am still
in doubt whether the fact on which a moment ago I depended as the
sufficient condition for a judgment may still be so regarded, the induction is
uncertain. It is unjustified when I take for sufficiently valid something that
as a matter of fact ought not to be so taken.” If we bear in mind how much
we are warned against the use of analogy, how it is expressly excluded in
the application of certain criminal laws, and how dangerous the use of every
analogy is, we must be convinced that the use for our cases of both
induction and analogy, is always menace. We have at the same time to bear
in mind how much use we actually make of both; even our general rules—
e.g., concerning false testimony,—bias, revertibility, special inclinations,
etc.—and our doctrines concerning the composition and indirection of
testimony, even our rules concerning the value of witnesses and
confessions, all these depend upon induction and analogy. We pass by their
use in every trial from case to case. A means so frequently and universally
used must, however, be altogether reliable, or be handled with the greatest
care. As it is not the first it must be handled in the second way.
We have yet to indicate the various ways in which induction may be
used. Fick has already called attention to the astounding question
concluding Mill’s system of logic: Why, in many cases, is a single example
sufficient to complete induction, while in other cases myriads of unanimous
instances admitting of no single known or suspected exception, make only a
small step toward the establishment of a generally valid judgment?
This question is of enormous significance in criminal cases because it is
not easy to determine in any particular trial whether we have to deal with a
situation of the first sort where a single example is evidential, or a situation

of the second sort where a great many examples fail to be evidential. On
this difficulty great mistakes depend, particularly mistakes of substitution of
the first for the second. We are satisfied in such cases with a few examples
and suppose ourselves to have proved the case although nothing whatever
has been established.
We must see first of all if it is of any use to refer the difficulty of the
matter to the form in which the question is put, and to say: The difficulty
results from the question itself. If it be asked, “Are any of the thousand
marbles in the bag white marbles?” the question is determined by the first
handful, if the latter brings to light a single white marble. If, however, the
problem is phrased so: Does the bag contain white marbles only? then,
although 999 marbles might already have been drawn from the receptacle, it
can not be determined that the last marble of the 1000 is white. In the same
way, if people assert that the form of the question determines the answer, it
does not follow that the form of the question is itself determined or
distinguished inasmuch as the object belongs to the first or the second of the
above named categories.
A safe method of distinction consists in calling the first form of the
question positive and the second negative. The positive refers to a single
unit; the negative to a boundless unit. If then I ask: Are there any white
marbles whatever in the bag? the answer is rendered affirmative by the
discovery of a single white marble. But if the question is phrased: Are there
only white marbles in the bag? merely its form is positive but its intent is
negative. To conform the manner of the question to its intent, it would be
necessary to ask: Are there no other colors than white among the marbles in
the bag? And inasmuch as the negative under given circumstances is in
many ways boundless, the question admits of no answer until the last
marble has been brought to light. If the total number of marbles is unlimited
the question can receive no complete inductive answer in mathematical
form; it can be solved only approximately. So again, if one asks: Are there
any purely blue birds? the answer is affirmative as soon as a single
completely blue bird is brought to light. But if the question is: Do not also
striped birds exist? no answer is possible until the very last bird on earth is
exhibited. In that way only could the possibility be excluded that not one of
the terrestrial fowls is striped. As a matter of fact we are satisfied with a
much less complete induction. So we say: Almost the whole earth has been
covered by naturalists and not one of them reports having observed a

striped bird; hence there would be none such even in the unexplored parts
of the earth. This is an inductive inference and its justification is quite
another question.
The above mentioned distinction may be made still clearer if instead of
looking back to the form of the question, we study only the answer. We
have then to say that positive statements are justified by the existence of a
single instance, negative assertions only by the complete enumeration of all
possible instances and never at all if the instances be boundless. That the
negative proof always requires a series of demonstrations is well known;
the one thing which may be firmly believed is the fact that the problem,
whether a single example is sufficient, or a million are insufficient, is only a
form of the problem of affirmative and negative assertions.
So then, if I ask: Has A ever stolen anything? it is enough to record one
judgment against him, or to bring one witness on the matter in order to
establish that A committed theft at least once in his life. If, however, it is to
be proved that the man has never committed a theft, his whole life must be
reviewed point by point, and it must be shown that at no instant of it did he
commit larceny. In such cases we are content with much less. We say first
of all: We will not inquire whether the man has never stolen. We will see
merely whether he was never punished for theft. But here, too, we must
beware and not commit ourselves to inquiring of all the authorities in the
world, but only of a single authority, who, we assume, ought to know
whether A was punished or not. If we go still further, we say that inasmuch
as we have not heard from any authorities that the man was ever punished
for stealing, we suppose that the man was never punished on that ground;
and inasmuch as we have not examined anybody who had seen A steal, we
preferably suppose that he has never stolen. This is what we call
satisfactory evidence, and with the poor means at our disposal it must
suffice.

In most cases we have to deal with mixed evidence, and frequently it has
become habitual to change the problem to be solved according to our
convenience, or at least to set aside some one thing. Suppose that the issue
deals with a discovered, well-retained footprint of a man. We then suspect
somebody and compare the sole of his shoe with the impression. They fit in
length and width, in the number of nails and in all the other possible
indices, and we therefore assert: It is the footprint of the suspect, for “whose
footprint?” is the problem we are troubling ourselves to solve. In truth we
have only shown that the particular relations, in the matter of length,
breadth, number of nails, etc., agree, and hence we regard the positive part
of the evidence as sufficient and neglect the whole troublesome negative
part, which might establish the fact that at the time and in the region in
question, nobody was or could be whose foot could accurately fit that
particular footprint. Therefore we have not proved but have only calculated
the probability that at the time there might possibly not have been another
person with a shoe of similar length, breadth and number of nails. The
probability becomes naturally less as fewer details come to hand. The
difficulty lies in finding where such probability, which stands for at least an
assumption, must no longer be considered. Suppose, now, that neither shoe-
nails nor patches, nor other clear clews can be proved and only length and
width agree. If the agreement of the clews were really a substantiation of
the proof by evidence, it would have to suffice as positive evidence; but as
has been explained, the thing proved is not the point at issue, but another
point.
The negative portion of the evidence will naturally be developed with
less accuracy. The proof is limited to the assertion that such shoes as were
indicated in the evidence were very rarely or never worn in that region, also
that no native could have been present, that the form of the nails allowed
inference of somebody from foreign regions, one of which might be the
home of the suspect, etc. Such an examination shows that what we call
evidence is only probability or possibility.
Another form which seems to contradict the assertion that negative
propositions are infinite is positive evidence in the shape of negation. If we
give an expert a stain to examine and ask him whether it is a blood stain,
and he tells us: “It is not a blood stain,” then this single scientifically
established assertion proves that we do not have to deal with blood, and
hence “negative” proof seems brought in a single instance. But as a matter

of fact we deal here with an actually positive proof, for the expert has given
us the deduced proposition, not the essential assertion. He has found the
stain to be a rust stain or a tobacco stain, and hence he may assert and
deduce that it is not blood. Even were he a skeptic, he would say, “We have
not yet seen the blood of a mammal in which the characteristic signs for
recognition were not present, and we have never yet recognized a body
without the blood pertaining to it, and hence we may say, we are not dealing
with blood because all of us found the characteristics of the stain to be what
we have been until now accustomed to call the characteristics of rust stain.”
We have still to touch upon the difference between logical connection
and experience. If I say, “This mineral tastes salty, therefore it is soluble in
water,” the inference depends upon logical relationships, for my intent is:
“If I perceive a salty taste, it has to be brought to the nerves of taste, which
can be done only by the combination of the mineral with the saliva, hence
by its solution in the saliva. But if it is soluble in saliva it must also be
soluble in water.” If I say on the other hand, “This mineral tastes salty, has a
hardness of 2, a specific gravity of 2.2, and consequently it crystallizes
hexagonally,”—this statement depends on experience, for what I really say
is: “I know first of all, that a mineral which has the qualities mentioned
must be rock salt; for at the least, we know of no mineral which has these
qualities and is not rock salt, and which in the second place crystallizes
hexagonally as rock salt does,—a way which, at least, we find rock salt
never to have missed.” If we examine the matter still more closely we
become convinced that in the first case only the formal and logical side, in
the second the experiential aspect predominates. The premises of both cases
are purely matters of experience and the formal question of inference is a
matter of logic. Only,—at one time the first question, at another the second
comes more obviously into the foreground. Although this matter appears
self-evident it is not indifferent. It is well known that whenever we are
powerfully influenced by one thing, things of little intensity are either not
experienced at all or only to a very small degree, and are therefore
neglected. This is a fact which may indeed be shown mathematically, for
infinity plus one equals infinity. When, therefore, we undergo great pain or
great joy, any accompanying insignificant pain or any pleasure will be
barely felt, just as the horses who drag a very heavy wagon will not notice
whether the driver walking beside them adds his coat to the load (cf.
Weber’s law). Hence, when we criminalists study a difficult case with

regard to the question of proof, there are two things to do in order to test the
premises for correctness according to the standards of our other
experiences, and to draw logically correct inferences from these premises.
If it happens that there are especial difficulties in one direction while by
some chance those in the other are easily removed, it becomes surprising
how often the latter are entirely ignored. And hence, the adjustment of
inferences is naturally false even when the great difficulties of the first type
are removed correctly. Therefore, if the establishment of a fact costs a good
deal of pains and means the expenditure of much time, the business of
logical connection appears so comparatively easy that it is made swiftly and
—wrongly.
Mistakes become, at least according to my experience, still more
frequent when the difficulty is logical and not empirical. As a matter of
honesty, let me say that we criminalists are not trained logicians, however
necessary it is that we shall be such, and most of us are satisfied with the
barren remainder of what we learned long ago in the Gymnasium and have
since forgotten. The difficulties which occur in the more important logical
tasks are intelligible when compared with the lesser difficulties; and when
one of these larger problems is by good fortune rightly solved, the effort
and the work required by the solution make it easy to forget asking whether
the premises are correct; they are assumed as self-evident. Hence, in the
review of the basis for judgment, it is often discovered that the logical task
has been performed with care, with the expenditure of much time, etc., only
to be based upon some apparently unessential presupposition which
contradicts all experience and is hence materially incorrect. Consequence,
—the inference is wrong since the premise was wrong, and the whole work
has gone for nothing. Such occurrences convince one that no judge would
have been guilty of them if the few difficulties concerning the fact in
question were not, because treated in the light of the effort required by the
logical work, quite neglected. Nor does this occur unconsciously, or as a
consequence of a sort of lapse of memory concerning the meaning or the
importance of an empirical problem, it also happens at least half
consciously by way of a characteristic psychic process which everybody
may identify in his own experience: i.e., the idea occurs, in some degree
subconsciously, that the overgreatness of the work done in one direction
ought to be corrected by the inadequacy of the work done in the other
direction. And this happens in lawyer’s work often, and being frequently

justifiable, becomes habitual. If I, for example, have examined ten
unanimous witnesses concerning the same event and have completely
demonstrated the status of the case, I ought, in examining the last two
witnesses, who are perhaps no longer needed but have been summoned and
appear, certainly to proceed in a rapid manner. This justifiable neglect is
then half unconsciously transferred to other procedures where there is
possible no equalization of the hypertrophy of work in one direction with
the dwarfing of it in another, and where the mistake causes the result to be
wrong. However I may have been bothered by the multiplication of ten
groups of factors and whatever accuracy I may have applied to a task can
not permit me to relax my attention in the addition of the individual results.
If I do I am likely to commit an error and the error renders all the previous
labor worthless.
Indeed, it may be asserted that all logic is futile where the premises or a
single premise may be wrong. I expect, in truth, that the procedures here
described will be doubted to be even possible, but doubters are
recommended to examine a few cases for the presence of this sort of thing.
Section 27. (e) Analogy.

Analogy is the least negligible of all methods of induction because it
rests at bottom on the postulate that one thing which has a number of
qualities in common with another will agree with that other in one or more
additional qualities. In cases of analogy, identity is never asserted; indeed,
it is excluded, while a certain parallelism and agreement in specific points
are assumed, i.e., introduced tacitly as a mutatis mutandis. Consider Lipps’s
examples. He calls analogy the transfer of judgment or the transition from
similar to similar, and he adds that the value of such a process is very
variable. If I have perceived x times that flowers of a certain color have
perfume, I am inclined to expect perfume from flowers of the same color in
x+1 cases. If I have observed x times that clouds of a certain structure are
followed by rain I shall expect rain in the x+1st case. The first analogy is
worthless because there is no relation between color and perfume; the
second is of great value because such a relation does exist between rain and
clouds.
Simply stated, the difference between these two examples does not
consist in the existence of a relationship in the one case and the absence of a
relationship in the other; it consists in the fact that in the case of the flowers

the relationship occurs now and then but is not permanently knowable. It is
possible that there is a natural law controlling the relation between color
and odor, and if that law were known there would be no question of
accident or of analogy, but of law. Our ignorance of such a law, in spite of
the multiplicity of instances, lies in the fact that we are concerned only with
the converse relationships and not with the common cause of perfume and
color. Suppose I see on the street a large number of people with winter
over-coats and a large number of people with skates in their hands, I would
hardly ask whether the coats are conditioned or brought out by the skates or
the skates by the coats. If I do not conclude that the cold weather is the
condition both of the need of over-coats and the utility of skates, I will
suppose that there is some unintelligible reflexive relation between over-
coats and skates. If I observe that on a certain day every week there
regularly appear many well-dressed people and no workingmen on the
street, if I am ignorant of the fact that Sunday is the cause of the appearance
of the one and the disappearance of the other, I shall try in vain to find out
how it happens that the working people are crowded out by the well-dressed
ones or conversely.
The danger of analogy lies in the fact that we prefer naturally to depend
on something already known, and that the preference is the greater in
proportion to our feeling of the strangeness and ominousness of the
particular intellectual or natural regions in which we find ourselves. I have
already once demonstrated[141] how disquieting it is to notice, during the
examination of the jury, that the jurymen who ask questions try to find
some relation to their own trades even though this requires great effort, and
seek to bring the case they are asking about under the light of their
particular profession. So, however irrelevant the statement of a witness may
be, the merchant juryman will use it to explain Saldo-Conti, the carpenter
juryman to explain carpentry, the agriculturist to notice the farming of
cattle, and then having set the problem in his own field construct the most
daring analogies, for use in determining the guilt of the accused. And we
lawyers are no better. The more difficult and newer a case is the more are
we inclined to seek analogies. We want supports, for we do not find firm
natural laws, and in our fear we reach out after analogies, not of course in
law, because that is not permitted, but certainly in matters of fact. Witness X
has given difficult testimony in a certain case. We seek an analogy in
witness Y of an older case, and we observe the present issue thus

analogically, without the least justification. We have never yet seen drops of
blood on colored carpets, yet we believe in applying our experience of
blood stains on clothes and boots analogically. We have before us a
perfectly novel deed rising from perverted sexual impulse—and we
presuppose that the accused is to be treated altogether analogously to
another in a different case, although indeed the whole event was different.
Moreover the procedure, where the analogy is justified, is complex.
“With insight,” says Trendelenburg, “did the ancients regard analogy as
important. The power of analogy lies in the construction and induction of a
general term which binds the subconcept with regard to which a conclusion
is desired, together with the individual object which is compared with the
first, and which is to appear as a mediating concept but can not. This new
general term is not, however, the highest concept among the three termini of
the conclusion; it is the middle one and is nothing else than the terminus
medius of the first figure.” This clear statement shows not only how
circumstantial every conclusion from analogy is, but also how little it
achieves. There is hardly any doubt of the well-known fact that science has
much to thank analogy for, since analogy is the simplest and easiest means
for progress in thought. If anything is established in any one direction but
progress is desired in another, then the attempt is made to adapt what is
known to the proximate unknown and to draw the possible inference by
analogy. Thousands upon thousands of analogies have been attempted and
have failed,—but no matter; one successful one became a hypothesis and
finally an important natural law. In our work, however, the case is
altogether different, for we are not concerned with the construction of
hypotheses, we are concerned with the discovering of truth, or with the
recognition that it cannot be discovered.
The only place where our problems permit of the use of analogy is in the
making of so-called constructions, i.e., when we aim to clarify or to begin
the explanation of a case which is at present unintelligible, by making some
assumption. The construction then proceeds in analogy to some already
well known earlier case. We say: “Suppose the case to have been so and
so,” and then we begin to test the assumption by applying it to the material
before us, eliminating and constructing progressively until we get a
consistent result. There is no doubt that success is frequently attained in this
way and that it is often the only way in which a work may be begun. At the
same time, it must be recognized how dangerous this is, for in the eagerness

of the work it is easy to forget that so far, one is working only according to
analogy by means of an assumption still to be proved. This assumption is in
such cases suddenly considered as something already proved and is counted
as such with the consequence that the result must be false. If you add the
variability in value of analogy, a variability not often immediately
recognized, the case becomes still worse. We have never been on the moon,
have therefore apparently no right to judge the conditions there—and still
we know—only by way of analogy—that if we jumped into the air there we
should fall back to the ground. But still further: we conclude again, by
analogy, that there are intelligent beings on Mars; if, however, we were to
say how these people might look, whether like us or like cubes or like
threads, whether they are as large as bees or ten elephants, we should have
to give up because we have not the slightest basis for analogy.
In the last analysis, analogy depends upon the recurrence of similar
conditions. Therefore we tacitly assume when we judge by analogy that the
similarity of conditions contains an equivalence of ultimately valid
circumstance. The certainty of analogy is as great as the certainty of this
postulate, and its right as great as the right of this postulate.
If, then, the postulate is little certain, we have gained nothing and reach
out into the dark; if its certainty is great we no longer have an analogy, we
have a natural law. Hence, Whately uses the term analogy as an expression
for the similarity of relation, and in this regard the use of analogy for our
real work has no special significance. Concerning so-called false analogies
and their importance cf. J. Schiel’s Die Methode der induktiven Forschung
(Braunschweig 1865).
Section 28. (f) Probability.

Inasmuch as the work of the criminal judge depends upon the proof of
evidence, it is conceivable that the thing for him most important is that
which has evidential character or force.[142] A sufficient definition of
evidence or proof does not exist because no bounds have been set to the
meaning of “Proved.” All disciplines furnish examples of the fact that
things for a long time had probable validity, later indubitable validity; that
again some things were considered proved and were later shown to be
incorrect, and that many things at one time wobbly are in various places,
and even among particular persons, supposed to be at the limits of
probability and proof. Especially remarkable is the fact that the concept of

the proved is very various in various sciences, and it would be absorbing to
establish the difference between what is called proved and what only
probable in a number of given examples by the mathematician, the
physicist, the chemist, the physician, the naturalist, the philologist, the
historian, the philosopher, the lawyer, the theologian, etc. But this is no task
for us and nobody is called upon to determine who knows what “Proved”
means. It is enough to observe that the differences are great and to
understand why we criminalists have such various answers to the question:
Is this proved or only probable? The varieties may be easily divided into
groups according to the mathematical, philosophic, historical or naturalistic
inclinations of the answerer. Indeed, if the individual is known, what he
means by “proved” can be determined beforehand. Only those minds that
have no especial information remain confused in this regard, both to others,
and to themselves.
Sharply to define the notion of “proved” would require at least to
establish its relation to usage and to say: What we desire leads us to an
assumption, what is possible gives us probability, what appears certain, we
call proved. In this regard the second is always, in some degree, the
standard for the first (desires, e.g., cause us to act; one becomes
predominant and is fixed as an assumption which later on becomes clothed
with a certain amount of reliability by means of this fixation).
The first two fixations, the assumption and the probability, have in
contrast to their position among other sciences only a heuristic interest to us
criminalists. Even assumptions, when they become hypotheses, have in
various disciplines a various value, and the greatest lucidity and the best
work occur mainly in the quarrel about an acutely constructed hypothesis.
Probability has a similar position in the sciences. The scholar who has
discovered a new thought, a new order, explanation or solution, etc., will
find it indifferent whether he has made it only highly probable or certain.
He is concerned only with the idea, and a scholar who is dealing with the
idea for its own sake will perhaps prefer to bring it to a great probability
rather than to indubitable certainty, for where conclusive proof is presented
there is no longer much interest in further research, while probability
permits and requires further study. But our aim is certainty and proof only,
and even a high degree of probability is no better than untruth and can not
count. In passing judgment and for the purpose of judgment a high degree
of probability can have only corroborative weight, and then it is probability

only when taken in itself, and proof when taken with regard to the thing it
corroborates. If, for example, it is most probable that X was recognized at
the place of a crime, and if at the same time his evidence of alibi has failed,
his footmarks are corroborative; so are the stolen goods which have been
seen in his possession, and something he had lost at the place of the crime
which is recognized as his property, etc. In short, when all these indices are
in themselves established only as highly probable, they give under certain
circumstances, when taken together, complete certainty, because the
coincidence of so many high probabilities must be declared impossible if X
were not the criminal.
In all other cases, as we have already pointed out, assumption and
probability have only a heuristic value for us lawyers. With the assumption,
we must of course count; many cases can not be begun without the
assistance of assumption. Every only half-confused case, the process of
which is unknown, requires first of all and as early as possible the
application of some assumption to its material. As soon as the account is
inconsistent the assumption must be abandoned and a fresh one and yet
again a fresh one assumed, until finally one holds its own and may be
established as probable. It then remains the center of operation, until it
becomes of itself a proof or, as we have explained, until so many high
probabilities in various directions have been gathered, that, taken in their
order, they serve evidentially. A very high degree of probability is sufficient
in making complaints; but sentencing requires “certainty,” and in most
cases the struggle between the prosecution and the defense, and the doubt of
the judge, turns upon the question of probability as against proof.[143]
That probability is in this way and in a number of relations, of great
value to the criminalist can not appear doubtful. Mittermaier defines its
significance briefly: “Probability naturally can never lead to sentence. It is,
however, important as a guide for the conduct of the examiner, as
authorizing him to take certain measures; it shows how to attach certain
legal processes in various directions.”
Suppose that we review the history of the development of the theory of
probability. The first to have attempted a sharp distinction between
demonstrable and probable knowledge was Locke. Leibnitz was the first to
recognize the importance of the theory of probability for inductive logic. He
was succeeded by the mathematician Bernoulli and the revolutionist
Condorcet. The theory in its modern form was studied by Laplace, Quetelet,

Herschel, von Kirchmann, J. von Kries, Venn, Cournot, Fick, von
Bortkiewicz, etc. The concept that is called probability varies with different
authorities. Locke[144] divides all fundamentals into demonstrative and
probable. According to this classification it is probable that “all men are
mortal,” and that “the sun will rise to-morrow.” But to be consistent with
ordinary speech the fundamentals must be classified as evidence,
certainties, and probabilities. By certainties I understand such fundamentals
as are supported by experience and leave no room for doubt or
consideration—everything else, especially as it permits of further proof, is
more or less probable.
Laplace[145] spoke move definitely—“Probability depends in part on our
ignorance, in part on our knowledge....
“The theory of probability consists in the reduction of doubts of the
same class of a definite number of equally possible cases in such a way that
we are equally undetermined with regard to their existence, and it further
consists in the determination of the number of those cases which are
favorable to the result the probability of which is sought. The relation of
this number to the number of all possible cases is the measure of the
probability. It is therefore a fraction the numerator of which is derived from
the number of cases favorable to the result and the denominator from the
number of all possible cases.” Laplace, therefore, with J. S. Mill, takes
probability to be a low degree of certainty, while Venn[146] gives it an
objective support like truth. The last view has a great deal of plausibility
inasmuch as there is considerable doubt whether an appearance is to be
taken as certain or as only probable. If this question is explained, the
assertor of certainty has assumed some objective foundation which is
indubitable at least subjectively. Fick represents the establishment of
probability as a fraction as follows: “The probability of an incompletely
expressed hypothetical judgment is a real fraction proved as a part of the
whole universe of conditions upon which the realization of the required
result necessarily depends.
“According to this it is hardly proper to speak of the probability of any
result. Every individual event is either absolutely necessary or impossible.
The probability is a quality which can pertain only to a hypothetical
judgment.”[147]

That it is improper to speak of the probability of a result admits of no
doubt, nor will anybody assert that the circumstance of to-morrow’s rain is
in itself probable or improbable—the form of expression is only a matter of
usage. It is, however, necessary to distinguish between conditioned and
unconditioned probability. If I to-day consider the conditions which are
attached to the ensuing change of weather, if I study the temperature, the
barometer, the cloud formation, the amount of sunlight, etc., as conditions
which are related to to-morrow’s weather as its forerunners, then I must say
that to-morrow’s rain is probable to such or such a degree. And the
correctness of my statement depends upon whether I know the conditions
under which rain must appear, more or less accurately and completely, and
whether I relate those conditions properly. With regard to unconditioned
probabilities which have nothing to do with the conditions of to-day’s
weather as affecting to-morrow’s, but are simply observations statistically
made concerning the number of rainy days, the case is quite different. The
distinction between these two cases is of importance to the criminalist
because the substitution of one for the other, or the confusion of one with
the other, will cause him to confuse and falsely to interpret the probability
before him. Suppose, e.g., that a murder has happened in Vienna, and
suppose that I declare immediately after the crime and in full knowledge of
the facts, that according to the facts, i.e., according to the conditions which
lead to the discovery of the criminal, there is such and such a degree of
probability for this discovery. Such a declaration means that I have
calculated a conditioned probability. Suppose that on the other hand, I
declare that of the murders occurring in Vienna in the course of ten years,
so and so many are unexplained with regard to the personality of the
criminal, so and so many were explained within such and such a time,—and
consequently the probability of a discovery in the case before us is so and
so great. In the latter case I have spoken of unconditioned probability.
Unconditioned probability may be studied by itself and the event compared
with it, but it must never be counted on, for the positive cases have already
been reckoned with in the unconditioned percentage, and therefore should
not be counted another time. Naturally, in practice, neither form of
probability is frequently calculated in figures; only an approximate
interpretation of both is made. Suppose that I hear of a certain crime and the
fact that a footprint has been found. If without knowing further details, I cry
out: “Oh! Footprints bring little to light!” I have thereby asserted that the

statistical verdict in such cases shows an unfavorable percentage of
unconditional probability with regard to positive results. But suppose that I
have examined the footprint and have tested it with regard to the other
circumstances, and then declared: “Under the conditions before us it is to be
expected that the footprint will lead to results”—then I have declared,
“According to the conditions the conditioned probability of a positive result
is great.” Both assertions may be correct, but it would be false to unite them
and to say, “The conditions for results are very favorable in the case before
us, but generally hardly anything is gained by means of footprints, and
hence the probability in this case is small.” This would be false because the
few favorable results as against the many unfavorable ones have already
been considered, and have already determined the percentage, so that they
should not again be used.
Such mistakes are made particularly when determining the complicity of
the accused. Suppose we say that the manner of the crime makes it highly
probable that the criminal should be a skilful, frequently-punished thief, i.e.,
our probability is conditioned. Now we proceed to unconditioned
probability by saying: “It is a well-known fact that frequently-punished
thieves often steal again, and we have therefore two reasons for the
assumption that X, of whom both circumstances are true, was the criminal.”
But as a matter of fact we are dealing with only one identical probability
which has merely been counted in two ways. Such inferences are not
altogether dangerous because their incorrectness is open to view; but where
they are more concealed great harm may be done in this way.
A further subdivision of probability is made by Kirchmann.[148] He
distinguished:
(1) General probability, which depends upon the causes or consequences
of some single uncertain result, and derives its character from them. An
example of the dependence on causes is the collective weather prophecy,
and of dependence on consequences is Aristotle’s dictum, that because we
see the stars turn the earth must stand still. Two sciences especially depend
upon such probabilities: history and law, more properly the practice and use
of criminal law. Information imparted by men is used in both sciences; this
information is made up of effects and hence the occurrence is inferred from
as cause.

(2) Inductive probability. Single events which must be true, form the
foundation, and the result passes to a valid universal. (Especially made use
of in the natural sciences, e.g., in diseases caused by bacilli; in case X we
find the appearance A and in diseases of like cause Y and Z, we also find
the appearance A. It is therefore probable that all diseases caused by bacilli
will manifest the symptom A.)
(3) Mathematical Probability. This infers that A is connected either with
B or C or D, and asks the degree of probability. I. e.: A woman is brought to
bed either with a boy or a girl: therefore the probability that a boy will be
born is one-half.
Of these forms of probability the first two are of equal importance to us,
the third rarely of value, because we lack arithmetical cases and because
probability of that kind is only of transitory worth and has always to be so
studied as to lead to an actual counting of cases. It is of this form of
probability that Mill advises to know, before applying a calculation of
probability, the necessary facts, i.e., the relative frequency with which the
various events occur, and to understand clearly the causes of these events. If
statistical tables show that five of every hundred men reach, on an average,
seventy years, the inference is valid because it expresses the existent
relation between the causes which prolong or shorten life.
A further comparatively self-evident division is made by Cournot, who
separates subjective probability from the possible probability pertaining to
the events as such. The latter is objectively defined by Kries[149] in the
following example:
“The throw of a regular die will reveal, in the great majority of cases, the
same relation, and that will lead the mind to suppose it objectively valid. It
hence follows, that the relation is changed if the shape of the die is
changed.” But how “this objectively valid relation,” i.e., substantiation of
probability, is to be thought of, remains as unclear as the regular results of
statistics do anyway. It is hence a question whether anything is gained when
the form of calculation is known.
Kries says, “Mathematicians, in determining the laws of probability,
have subordinated every series of similar cases which take one course or
another as if the constancy of general conditions, the independence and
chance equivalence of single events, were identical throughout. Hence, we
find there are certain simple rules according to which the probability of a

case may be calculated from the number of successes in cases observed
until this one and from which, therefore, the probability for the appearance
of all similar cases may be derived. These rules are established without any
exception whatever.” This statement is not inaccurate because the general
applicability of the rules is brought forward and its use defended in cases
where the presuppositions do not agree. Hence, there are delusory results,
e.g., in the calculation of mortality, of the statements of witnesses and
judicial deliverances. These do not proceed according to the schema of the
ordinary play of accident. The application, therefore, can be valid only if
the constancy of general conditions may be reliably assumed.
But this evidently is valid only with regard to unconditioned probability
which only at great intervals and transiently may influence our practical
work. For, however well I may know that according to statistics every xth
witness is punished for perjury, I will not be frightened at the approach of
my xth witness though he is likely, according to statistics, to lie. In such
cases we are not fooled, but where events are confused we still are likely to
forget that probabilities may be counted only from great series of figures in
which the experiences of individuals are quite lost.
Nevertheless figures and the conditions of figures with regard to
probability exercise great influence upon everybody; so great indeed, that
we really must beware of going too far in the use of figures. Mill cites a
case of a wounded Frenchman. Suppose a regiment made up of 999
Englishmen and one Frenchman is attacked and one man is wounded. No
one would believe the account that this one Frenchman was the one
wounded. Kant says significantly: “If anybody sends his doctor 9 ducats by
his servant, the doctor certainly supposes that the servant has either lost or
otherwise disposed of one ducat.” These are merely probabilities which
depend upon habits. So, it may be supposed that a handkerchief has been
lost if only eleven are found, or people may wonder at the doctor’s ordering
a tablespoonful every five quarters of an hour, or if a job is announced with
$2487 a year as salary.
But just as we presuppose that wherever the human will played any part,
regular forms will come to light, so we begin to doubt that such forms will
occur where we find that accident, natural law, or the unplanned
coöperation of men were determining factors. If I permit anybody to count
up accidentally concurrent things and he announces that their number is one
hundred, I shall probably have him count over again. I shall be surprised to

hear that somebody’s collection contains exactly 1000 pieces, and when any
one cites a distance of 300 steps I will suppose that he had made an
approximate estimation but had not counted the steps. This fact is well
known to people who do not care about accuracy, or who want to give their
statements the greatest possible appearance of correctness; hence, in citing
figures, they make use of especially irregular numbers, e.g. 1739, 7/8,
3.25%, etc. I know a case of a vote of jurymen in which even the proportion
of votes had to be rendered probable. The same jury had to pass that day on
three small cases. In the first case the proportion was 8 for, 4 against, the
second case showed the same proportion and the third case the same. But
when the foreman observed the proportion he announced that one juryman
must change his vote because the same proportion three times running
would appear too improbable! If we want to know the reason for our
superior trust in irregularity in such cases, it is to be found in the fact that
experience shows nature, in spite of all her marvelous orderliness in the
large, to be completely free, and hence irregular in little things. Hence, as
Mill shows in more detail, we expect no identity of form in nature. We do
not expect next year to have the same order of days as this year, and we
never wonder when some suggestive regularity is broken by a new event.
Once it was supposed that all men were either black or white, and then red
men were discovered in America. Now just exactly such suppositions cause
the greatest difficulties, because we do not know the limits of natural law.
For example, we do not doubt that all bodies on earth have weight. And we
expect to find no exception to this rule on reaching some undiscovered
island on our planet; all bodies will have weight there as well as everywhere
else. But the possibility of the existence of red men had to be granted even
before the discovery of America. Now where is the difference between the
propositions: All bodies have weight, and, All men are either white or
black? It may be said circularly the first is a natural law and the second is
not. But why not? Might not the human body be so organized that according
to the natural law it would be impossible for red men to exist? And what
accurate knowledge have we of pigmentation? Has anybody ever seen a
green horse? And is the accident that nobody has ever seen one to prevent
the discovery of green horses in the heart of Africa? May, perhaps,
somebody not breed green horses by crossings or other experiments? Or is
the existence of green horses contrary to some unknown but invincible

natural law? Perhaps somebody may have a green horse to-morrow;
perhaps it is as impossible as water running up hill.
To know whether anything is natural law or not always depends upon the
grade and standing of our immediate experience—and hence we shall never
be able honestly to make any universal proposition. The only thing possible
is the greatest possible accurate observation of probability in all known
possible cases, and of the probability of the discovery of exceptions. Bacon
called the establishment of reliable assumptions, counting up without
meeting any contradictory case. But what gives us the law is the manner of
counting. The untrained mind accepts facts as they occur without taking the
trouble to seek others; the trained mind seeks the facts he needs for the
premises of his inference. As Mill says, whatever has shown itself to be true
without exception may be held universal so long as no doubtful exception is
presented, and when the case is of such a nature that a real exception could
not escape our observation.
This indicates how we are to interpret information given by others. We
hear, “Inasmuch as this is always so it may be assumed to be so in the
present case.” Immediate acceptance of this proposition would be as
foolhardy as doubt in the face of all the facts. The proper procedure is to
examine and establish the determining conditions, i.e., who has counted up
this “always,” and what caution was used to avoid the overlooking of any
exception. The real work of interpretation lies in such testing. We do not
want to reach the truth with one blow, we aim only to approach it. But the
step must be taken and we must know how large it is to be, and know how
much closer it has brought us to the truth. And this is learned only through
knowing who made the step and how it was made. Goethe’s immortal
statement, “Man was not born to solve the riddle of the universe, but to seek
out what the problem leads to in order to keep himself within the limits of
the conceivable,” is valid for us too.
Our great mistake in examining and judging often lies in our setting too
much value upon individual circumstances, and trying to solve the problem
with those alone, or in not daring to use any given circumstance sufficiently.
The latter represents that stupidity which is of use to scientific spirits when
they lack complete proof of their points, but is dangerous in practical
affairs. As a rule, it is also the consequence of the failure to evaluate what is
given, simply because one forgets or is too lazy to do so. Proper action in
this regard is especially necessary where certain legal proceedings have to

occur which are entitled to a definite degree of probability without requiring
certainty, i.e., preliminary examinations, arrests, investigations of the
premises, etc. No law says how much probability is in such cases required.
To say how much is impossible, but it is not unwise to stick to the notion
that the event must appear true, if not be proved true, i.e., nothing must be
present to destroy the appearance of truth. As Hume says, “Whenever we
have reason to trust earlier experiences and to take them as standards of
judgment of future experiences, these reasons may have probability.”
The place of probability in the positive determination of the order of
modern criminal procedure is not insignificant. When the law determines
upon a definite number of jurymen or judges, it is probable that this number
is sufficient for the discovery of the truth. The system of prosecution
establishes as a probability that the accused is the criminal. The idea of
time-lapse assumes the probability that after the passage of a certain time
punishment becomes illusory, and prosecution uncertain and difficult. The
institution of experts depends on the probability that the latter make no
mistakes. The warrant for arrest depends on the probability that the accused
behaved suspiciously or spoke of his crime, etc. The oath of the witness
depends on the probability that the witness will be more likely to tell the
truth under oath, etc.
Modern criminal procedure involves not only probabilities but also
various types of possibility. Every appeal has for its foundation the
possibility of an incorrect judgment; the exclusion of certain court officials
is based on the possibility of prejudice, or at least on the suspicion of
prejudice; the publicity of the trial is meant to prevent the possibility of
incorrectness; the revision of a trial depends on the possibility that even
legal sentences may be false, and the institution of the defendant lawyer
depends upon the possibility that a person without defense may receive
injustice. All the formalities of the action of the court assume the possibility
that without them improprieties may occur, and the institution of seizing
letters and messages for evidence, asserts only the possibility that the latter
contain things of importance, etc.
When the positive dicta of the law deal with possibility and probability
in questions of great importance the latter become especially significant.
We have yet to ask what is meant by “rule” and what its relation is to
probability. Scientifically “rule” means law subjectively taken and is of

equal significance with the guiding line for one’s own conduct, whence it
follows that there are only rules of art and morality, but no rules of nature.
Usage does not imply this interpretation. We say that as a rule it hails only
in the daytime; by way of exception, in the night also; the rule for the
appearance of whales indicates that they live in the Arctic Ocean; a general
rule indicates that bodies that are especially soluble in water should dissolve
more easily in warm than in cold water, but salt dissolves equally well in
both. Again we say: As a rule the murderer is an unpunished criminal; it is a
rule that the brawler is no thief and vice versa; the gambler is as a rule a
man of parts, etc. We may say therefore, that regularity is equivalent to
customary recurrence and that whatever serves as rule may be expected as
probable. If, i.e., it be said, that this or that happens as a rule, we may
suppose that it will repeat itself this time. It is not permissible to expect
more, but it frequently happens that we mistake rules permitting exceptions
for natural laws permitting none. This occurs frequently when we have lost
ourselves in the regular occurrences for which we are ourselves responsible
and suppose that because things have been seen a dozen times they must
always appear in the same way. It happens especially often when we have
heard some phenomenon described in other sciences as frequent and regular
and then consider it to be a law of nature. In the latter case we have
probably not heard the whole story, nor heard general validity assigned to it.
Or again, the whole matter has long since altered. Lotze wrote almost half a
century ago, that he had some time before made the statistical observation
that the great positive discoveries of exact physiology have an average life
of about four years. This noteworthy statement indicates that great positive
discoveries are set up as natural laws only to show themselves as at most
regular phenomena which have no right to general validity. And what is true
of physiology is true of many other sciences, even of the great discoveries
of medicine, even legal medicine. This, therefore, should warn against too
much confidence in things that are called “rules.” False usage and
comfortable dependence upon a rule have very frequently led us too far. Its
unreliability is shown by such maxims as “Three misses make a rule” or
“Many stupidities taken together give a golden rule of life,” or “To-day’s
exception is to-morrow’s rule,” or the classical perversion: “The rule that
there are no rules without exception is a rule without exception, hence,
there is one rule without exception.”

The unreliability of rules is further explained by their rise from
generalization. We must not generalize, as Schiel says, until we have shown
that if there are cases which contradict our generalizations we know those
contradictions. In practice approximate generalizations are often our only
guides. Natural law is too much conditioned, cases of it too much involved,
distinctions between them too hard to make, to allow us to determine the
existence of a natural phenomenon in terms of its natural characteristics as a
part of the business of our daily life. Our own age generalizes altogether too
much, observes too little, and abstracts too rapidly. Events come quickly,
examples appear in masses, and if they are similar they tend to be
generalized, to develop into a rule, while the exceptions which are infinitely
more important are unobserved, and the rule, once made, leads to
innumerable mistakes.
Section 29. (g) Chance.

The psychological significance of what we call chance depends upon the
concept of chance and the degree of influence that we allow it to possess in
our thinking. What is generally called chance, and what is called chance in
particular cases, will depend to a significant degree upon the nature of the
case. In progressive sciences the laws increase and the chance-happenings
decrease; the latter indeed are valid only in particular cases of the daily life
and in the general business of it. We speak of chance or accident when
events cross which are determined in themselves by necessary law, but the
law of the crossing of which is unknown. If, e.g., it is observed that where
there is much snow the animals are white, the event must not be attributed
to accident, for the formation of snow in high mountains or in the north, and
its long stay on the surface of the earth develop according to special natural
laws, and the colors of animals do so no less—but that these two orderly
series of facts should meet requires a third law, or still better, a third group
of laws, which though unknown some time ago, are now known to every
educated person.
For us lawyers chance and the interpretation of it are of immense
importance not only in bringing together evidence, but in every case of
suspicion, for the problem always arises whether a causal relation may be
established between the crime and the suspect, or whether the relation is
only accidental. “Unfortunate coincidence”—“closely related connection of
facts”—“extraordinary accumulation of reason for suspicion,”—all these

terms are really chance mistaken for causation. On the knowledge of the
difference between the one and the other depends the fate of most evidence
and trials. Whoever is fortunate enough in rightly perceiving what chance
is, is fortunate in the conduct of his trial.
Is there really a theory of chance? I believe that a direct treatment of the
subject is impossible. The problem of chance can be only approximately
explained when all conceivable chance-happenings of a given discipline are
brought together and their number reduced by careful search for definite
laws. Besides, the problem demands the knowledge of an extremely rich
casuistry, by means of which, on the one hand, to bring together the
manifoldness of chance events, and on the other to discover order. Enough
has been written about chance, but a systematic treatment of it must be
entirely theoretical. So Windelband’s[150] excellent and well-ordered book
deals with relations (chance and cause, chance and law, chance and purpose,
chance and concept) the greatest value of which is to indicate critically the
various definitions of the concept of chance. Even though there is no
definition which presents the concept of chance in a completely satisfactory
manner, the making of such definitions is still of value because one side of
chance is explained and the other is thereby seen more closely. Let us
consider a few of these and other definitions. Aristotle says that the
accidental occurs, παρἁ φὑσν, according to nature. Epicurus, who sees the
creation of the world as a pure accident, holds it to occur τἁ μἑν ἁπὁ τὑχης,
τἁ δἑ παρ’ἡμὡν. Spinoza believes nothing to be contingent save only
according to the limitations of knowledge; Kant says that conditioned
existence as such, is called accidental; the unconditioned, necessary.
Humboldt: “Man sees those things as accident which he can not explain
genetically.” Schiel: “Whatever may not be reduced back to law is called
accidental.” Quetelet: “The word chance serves officiously to hide our
ignorance.” Buckle derives the idea of chance from the life of nomadic
tribes, which contains nothing firm and regulated. According to
Trendelenburg chance is that which could not be otherwise. Rosenkranz
says: Chance is a reality which has only the value of possibility, while
Fischer calls chance the individualized fact, and Lotze identifies it with
everything that is not valid as a natural purpose. For Windelband “chance
consists, according to usage, in the merely factual but not necessary
transition from a possibility to an actuality. Chance is the negation of

necessity. It is a contradiction to say: ‘This happened by accident,’ for the
word ‘by’ expressed a cause.”
A. Höfler[151] says most intelligently, that the contradiction of the idea of
chance by the causal law may be easily solved by indicating the especial
relativity of the concept. (Accidental with regard to one, but otherwise
appearing as a possible causal series).
The lesson of these definitions is obvious. What we call chance plays a
great role in our legal work. On our recognizing a combination of
circumstances as accidental the result of the trial in most cases depends, and
the distinction between accident and law depends upon the amount of
knowledge concerning the events of the daily life especially. Now the use of
this knowledge in particular cases consists in seeking out the causal relation
in a series of events which are adduced as proof, and in turning accident
into order. Or, in cases where the law which unites or separates the events
can not be discovered, it may consist in the very cautious interpretation of
the combination of events on the principle simul cum hoc non est propter
hoc.
Section 30.(h) Persuasion and Explanation.

How in the course of trial are people convinced? The criminalist has as
presiding officer not only to provide the truth which convinces; it is his
business as state official to convince the defendant of the correctness of the
arguments adduced, the witness of his duty to tell the truth. But he again is
often himself convinced by a witness or an accused person—correctly or
incorrectly. Mittermaier[152] calls conviction a condition in which our
belief-it-is-true depends on full satisfactory grounds of which we are aware.
But this state of conviction is a goal to be reached and our work is not done
until the convincing material has been provided. Seeking the truth is not
enough. Karl Gerock assures us that no philosophical system offers us the
full and finished truth, but there is a truth for the idealist, and to ask Pilate’s
blasé question is, as Lessing suggests, rendering the answer impossible. But
this shows the difference between scientific and practical work; science
may be satisfied with seeking truth, but we must possess truth. If it were
true that truth alone is convincing, there would not be much difficulty, and
one might be content that one is convinced only by what is correct. But this
is not the case. Statistically numbers are supposed to prove, but actually
numbers prove according to their uses. So in the daily life we say facts are

proofs when it would be more cautious to say: facts are proofs according to
their uses. It is for this reason that sophistical dialectic is possible. Arrange
the facts in one way and you reach one result, arrange the facts another way
and you may reach the opposite. Or again, if you study the facts in doubtful
cases honestly and without prejudice you find how many possible
conclusions may be drawn, according to their arrangement. We must, of
course, not have in mind that conviction and persuasion which is brought
about by the use of many words. We have to consider only that adduction of
facts and explanation, simple or complex, in a more or less skilful,
intentional or unintentional manner, by means of which we are convinced at
least for a moment. The variety of such conviction is well known to
experience.
“The naïveté of the first glance often takes the prize from scholarship.
All hasty, decisive judgment betrays, when it becomes habitual,
superficiality of observation and impiety against the essential character of
particular facts. Children know as completely determined and certain a
great deal which is doubtful to the mature man” (V. Volkmar).
So, frequently, the simplest thing we are told gets its value from the
manner of telling, or from the person of the narrator. And inasmuch as we
ourselves are much more experienced and skilful in arranging and grouping
facts than are our witnesses and the accused, it often happens that we
persuade these people and that is the matter which wants consideration.
Nobody will assert that it will occur to any judge to persuade a witness
to anything which he does not thoroughly believe, but we know how often
we persuade ourselves to some matter, and nothing is more conceivable
than that we might like to see other people agree with us about it. I believe
that the criminalist, because, let us say, of his power, as a rule takes his
point of view too lightly. Every one of us, no doubt, has often begun his
work in a small and inefficient manner, has brought it along with mistakes
and scantiness and when finally he has reached a somewhat firm ground, he
has been convinced by his failures and mistakes of his ignorance and
inadequacy. Then he expected that this conviction would be obvious also to
other people whom he was examining. But this obviousness is remarkably
absent, and all the mistakes, cruelties, and miscarriages of justice, have not
succeeded in robbing it of the dignity it possesses in the eyes of the nation.
Perhaps the goodwill which may be presupposed ought to be substituted for
the result, but it is a fact that the layman presupposes much more

knowledge, acuteness, and power in the criminalist than he really possesses.
Then again, it is conceivable that a single word spoken by the judge has
more weight than it should have, and then when a real persuasion—
evidently in the best sense of the word—is made use of, it must be
influential. I am certain that every one of us has made the frightful
observation that by the end of the examination the witness has simply taken
the point of view of the examiner, and the worst thing about this is that the
witness still thinks that he is thinking in his own way.
The examiner knows the matter in its relation much better, knows how to
express it more beautifully, and sets pretty theories going. The witness, to
whom the questions are suggestive, becomes conceited, likes to think that
he himself has brought the matter out so excellently, and therefore is
pleased to adopt the point of view and the theories of the examiner who has,
in reality, gone too far in his eagerness. There is less danger of this when
educated people are examined for these are better able to express
themselves; or again when women are examined for these are too obstinate
to be persuaded, but with the great majority the danger is great, and
therefore the criminalist can not be told too often how necessary it is that he
shall meet his witness with the least conceivable use of eloquence.
Forensic persuasion is of especial importance and has been considered
so since classical days, whether rightly, is another question. The orations of
state prosecutors and lawyers for the defense, when made before scholarly
judges, need not be held important. If individuals are ever asked whether
they were persuaded or made doubtful by the prosecutor or his opponent
they indicate very few instances. A scholarly and experienced judge who
has not drawn any conclusions about the case until the evidence was all in
need hardly pay much attention to the pleaders. It may indeed be that the
prosecution or defense may belittle or intensify one or another bit of
evidence which the bench might not have thought of; or they may call
attention to some reason for severity or mercy. But on the one hand if this is
important it will already have been touched in the adduction of evidence,
and on the other hand such points are generally banal and indifferent to the
real issue in the case. If this be not so it would only indicate that either we
need a larger number of judges, or even when there are many judges that
one thing or another may be overlooked.
But with regard to the jury the case is quite different; it is easily
influenced and more than makes up for the indifference of the bench.

Whoever takes the trouble to study the faces of the jury during trial, comes
to the conclusion that the speeches of the prosecution and defense are the
most important things in the trial, that they absorb most of the attention of
the jury, and that the question of guilt or innocence does not depend upon
the number and weight of the testimony but upon the more or less skilful
interpretation of it. This is a reproach not to the jury but to those who
demand from it a service it can not render. It is first necessary to understand
how difficult the conduct of a trial is. In itself the conduct of a jury trial is
no art, and when compared with other tasks demanded of the criminalist
may be third or fourth in difficulty. What is difficult is the determination of
the chronological order in which to present evidence, i.e., the drawing of
the brief. If the brief is well drawn, everything develops logically and
psychologically in a good way and the case goes on well; but it is a great
and really artistic task to draw this brief properly. There are only two
possibilities. If the thing is not done, or the brief is of no use, the case goes
on irrelevantly, illogically and unintelligibly and the jury can not understand
what is happening. If the trick is turned, however, then like every art it
requires preparation and intelligence. And the jury do not possess these, so
that the most beautiful work of art passes by them without effect. They
therefore must turn their attention, to save what can be saved, upon the
orations of the prosecution and defense. These reproduce the evidence for
them in some intelligible fashion and the verdict will be innocence or guilt
according to the greater intelligence of one or the other of the contending
parties. Persuasiveness at its height, Hume tells us, leaves little room for
intelligence and consideration. It addresses itself entirely to the imagination
and the affections, captures the well-inclined auditors, and dominates their
understanding. Fortunately this height is rarely reached. In any event, this
height, which also dominates those who know the subject, will always be
rare, yet the jury are not people of knowledge and hence dominations ensue,
even through attempts at persuasiveness which have attained no height
whatever. Hence the great danger.
The only help against this is in the study by the presiding justice, not as
lawyer but as psychologist, of the faces of the jury while the contending
lawyers make their addresses. He must observe very narrowly and carefully
every influence exercised by the speeches, which is irrelevant to the real
problem, and then in summing up call it to the attention of the jury and

bring them back to the proper point of view. The ability to do this is very
marvelous, but it again is an exceedingly difficult performance.
Nowadays persuadability is hardly more studied but anybody who has
empirically attained some proficiency in it has acquired the same tricks that
are taught by theory. But these must be known if they are to be met
effectively. Hence the study of the proper authors can not be too much
recommended. Without considering the great authors of the classical period,
especially Aristotle and Cicero, there are many modern ones who might be
named.
Section 31. (i) Inference and Judgment.

The judgment to be discussed in the following section is not the
judgment of the court but the more general judgment which occurs in any
perception. If we pursue our tasks earnestly we draw from the simplest
cases innumerable inferences and we receive as many inferences from those
we examine. The correctness of our work depends upon the truth of both. I
have already indicated how very much of the daily life passes as simple and
invincible sense-perception even into the determination of a sentence,
although it is often no more than a very complicated series of inferences
each of which may involve a mistake even if the perception itself has been
correct. The frequency with which an inference is made from sense-
perception is the more astonishing inasmuch as it exceeds all that the
general and otherwise valid law of laziness permits. In fact, it contradicts
that law, though perhaps it may not do so, for a hasty inference from
insufficient premises may be much more comfortable than more careful
observation and study. Such hasty inference is made even with regard to the
most insignificant things. In the course of an investigation we discover that
we have been dealing only with inferences and that our work therefore has
been for nothing. Then again, we miss that fact, and our results are false and
their falsehood is rarely sought in these petty mistakes. So the witness may
have “seen” a watch in such and such a place when in reality he has only
heard a noise that he took for the ticking of a watch and hence inferred that
there had really been a watch, that he had seen it, and finally believed that
he had seen it. Another witness asserts that X has many chickens; as a
matter of fact he has heard two chickens cluck and infers a large number.
Still another has seen footprints of cattle and speaks of a herd, or he knows
the exact time of a murder because at a given time he heard somebody sigh,

etc. There would be little difficulty if people told us how they had inferred,
for then a test by means of careful questions would be easy enough—but
they do not tell, and when we examine ourselves we discover that we do
exactly the same thing and often believe and assert that we have seen or
heard or smelt or felt although we have only inferred these things.[153] Here
belong all cases of correct or partly correct inference and of false inference
from false sense-perception. I recall the oft-cited story in which a whole
judicial commission smelt a disgusting odor while a coffin was being
exhumed only to discover that it was empty. If the coffin, for one reason or
another, had not been opened all those present would have taken oath that
they had an indubitable perception although the latter was only inferred
from its precedent condition.
Exner[154] cites the excellent example in which a mother becomes
frightened while her child cries, not because the cry as such sounds so
terrible as because of its combination with the consciousness that it comes
from her own child and that something might have happened to it. It is
asserted, and I think rightly, that verbal associations have a considerable
share in such cases. As Stricker[155] expresses it, the form of any conceptual
complex whatever, brings out its appropriate word. If we see the thing
watch, we get the word watch. If we see a man with a definite symptom of
consumption the word tuberculosis occurs at once. The last example is
rather more significant because when the whole complex appears mistakes
are more remote than when merely one or another “safe” symptom permits
the appearance of the word in question. What is safe to one mind need not
be so to another, and the notion as to the certainty of any symptom changes
with time and place and person. Mistakes are especially possible when
people are so certain of their “safe” symptoms that they do not examine
how they inferred from them. This inference, however, is directly related to
the appearance of the word. Return to the example mentioned above, and
suppose that A has discovered a “safe” symptom of consumption in B and
the word tuberculosis occurs to him. But the occurrence does not leave him
with the word merely, there is a direct inference “B has tuberculosis.” We
never begin anything with the word alone, we attach it immediately to some
fact and in the present case it has become, as usual, a judgment. The
thought-movement of him who has heard this judgment, however, turns
backward and he supposes that the judge has had a long series of sense-

perceptions from which he has derived his inference. And in fact he has had
only one perception, the reliability of which is often questionable.
Then there is the additional difficulty that in every inference there are
leaps made by each inferer according to his character and training. And the
maker does not consider whether the other fellow can make similar leaps or
whether his route is different. E. g., when an English philosopher says, “We
really ought not to expect that the manufacture of woolens shall be
perfected by a nation which knows no astronomy,”—we are likely to say
that the sentence is silly; another might say that it is paradoxical and a third
that it is quite correct, for what is missing is merely the proposition that the
grade of culture made possible by astronomy is such as to require textile
proficiency also. “In conversation the simplest case of skipping is where the
conclusion is drawn directly from the minor premise. But many other
inferences are omitted, as in the case of real thinking. In giving information
there is review of the thinking of other people; women and untrained people
do not do this, and hence the disconnectedness of their conversation.”[156]
In this fact is the danger in examining witnesses, inasmuch as we
involuntarily interpolate the missing details in the skipping inferences, but
do it according to our own knowledge of the facts. Hence, a test of the
correctness of the other man’s inference becomes either quite impossible or
is developed coarsely. In the careful observation of leaping inferences made
by witnesses—and not merely by women and the uneducated—it will be
seen that the inference one might oneself make might either have been
different or have proceeded in a different way. If, then, all the premises are
tested a different result from that of the witness is obtained. It is well known
how identical premises permit of different conclusions by different people.
In such inferences certain remarkable things occur which, as a rule, have
a given relation to the occupation of the witness. So, e.g., people inclined to
mathematics make the greatest leaps, and though these may be
comparatively and frequently correct, the danger of mistake is not
insignificant when the mathematician deals in his mathematical fashion
with unmathematical things.
Another danger lies in the testimony of witnesses who have a certain
sense of form in representation and whose inferential leaps consists in their
omitting the detailed expression and in inserting the notion of form instead.
I learned of this notable psychosis from a bookkeeper of a large factory,
who had to provide for the test of numberless additions. It was his notion

that if we were to add two and three are five, and six are eleven, and seven
are eighteen we should never finish adding, and since the avoidance of
mistakes requires such adding we must so contrive that the image of two
and three shall immediately call forth the image of five. Now this mental
image of five is added with the actual six and gives eleven, etc. According
to this we do not add, we see only a series of images, and so rapidly that we
can follow with a pencil but slowly. And the images are so certain that
mistake is impossible. “You know how 9 looks? Well, just as certainly we
know what the image of 27 and 4 is like; the image of 31 occurs without
change.”
This, as it happens, is a procedure possible only to a limited type, but
this type occurs not only among bookkeepers. When any one of such
persons unites two events he does not consider what may result from such a
union; he sees, if I may say so, only a resulting image. This image,
however, is not so indubitably certain as in the case of numbers; and it may
take all kinds of forms, the correctness of which is not altogether probable.
E. g., the witness sees two forms in the dark and the flash of a knife and
hears a cry. If he belongs to the type under discussion he does not consider
that he might have been so frightened by the flashing knife as to have cried
out, or that he had himself proceeded to attack with a stick and that the
other fellow did the yelling, or that a stab or cut had preceded the cry—no,
he saw the image of the two forms and the knife and he heard the cry and
these leap together into an image, i.e., one of the forms has a cut above his
brow. And these leaps occur so swiftly and with such assurance that the
witness in question often believes himself to have seen what he infers and
swears to it.
There are a great many similar processes at the bottom of impressions
that depend only upon swift and unconscious inference. Suppose, e.g., that I
am shown the photograph of a small section of a garden, through which a
team is passing. Although I observe the image of only a small portion of the
garden and therefore have no notion of its extent, still, in speaking of it, I
shall probably speak of a very big garden. I have inferred swiftly and
unconsciously that in the fact that a wagon and horses were present in the
pictured portion of the garden, is implied great width of road, for even
gardens of average size do not have such wide roads as to admit wagons;
the latter occurring only in parks and great gardens. Hence my conclusion:
the garden must be very big. Such inferences[157] are frequent, whence the

question as to the source and the probability of the witness’s information,
whether it is positive or only an impression. Evidently such an impression
may be correct. It will be correct often, inasmuch as impressions occur only
when inferences have been made and tested repeatedly. But it is necessary
in any case to review the sequence of inferences which led to this
impression and to examine their correctness. Unfortunately the witness is
rarely aware whether he has perceived or merely inferred.
Examination is especially important when the impression has been made
after the observation of a few marks or only a single one and not very
essential one at that. In the example of the team the impression may have
been attained by inference, but frequently it will have been attained through
some unessential, purely personal, determinative characteristic. “Just as the
ancient guest recognizes his friend by fitting halves of the ring, so we
recognize the object and its constitution from one single characteristic, and
hence the whole vision of it is vivified by that characteristic.”[158]
All this is very well if no mistakes are made. When Tertullian said,
“Credo quia impossibile est,” we will allow honesty of statement to this
great scholar, especially as he was speaking about matters of religion, but
when Socrates said of the works of Heraclitus the Obscure: “What I
understand of it is good; I think that what I do not understand is also
good”—he was not in earnest. Now the case of many people who are not as
wise as Tertullian and Socrates is identical with theirs. Numerous
examinations of witnesses made me think of Tertullian’s maxim, for the
testimonies presented the most improbable things as facts. And when they
even explained the most unintelligible things I thought: “And what you do
not understand is also good.”
This belief of uncultured people in their own intelligence has been most
excellently portrayed by Wieland in his immortal “Abderites.” The fourth
philosopher says: “What you call the world is essentially an infinite series
of worlds which envelop one another like the skin of an onion.” “Very
clear,” said the Abderites, and thought they understood the philosopher
because they knew perfectly well what an onion looked like. The inference
which is drawn from the comprehension of one term in a comparison to the
comprehension of the other is one of the most important reasons for the
occurrence of so many misunderstandings. The example, as such, is
understood, but its application to the assertion and the question whether the
latter is also made clear by the example are forgotten. This explains the well

known and supreme power of examples and comparisons, and hence the
wise of all times have used comparisons in speaking to the poor in spirit.
Hence, too, the great effect of comparisons, and also the numerous and
coarse misunderstandings and the effort of the untrained and unintelligent to
clarify those things they do not understand by means of comparisons.
Fortunately they have, in trying to explain the thing to other people, the
habit of making use of these difficultly discovered comparisons so that the
others, if they are only sufficiently observant, may succeed in testing the
correctness of the inference from one term in a comparison to the other. We
do this frequently in examining witnesses, and we discover that the witness
has made use of a figure to clarify some unintelligible point and that he
necessarily understands it since it lies within the field of his instruments of
thought. But what is compared remains as confused to him as before. The
test of it, therefore, is very tiring and mainly without results, because one
rarely succeeds in liberating a man from some figure discovered with
difficulty. He always returns to it because he understands it, though really
not what he compares. But what is gained in such a case is not little, for the
certainty that, so revealed, the witness does not understand the matter in
hand, easily determines the value of his testimony.
The fullness of the possibilities under which anything may be asserted is
also of importance in this matter. The inference that a thing is impossible is
generally made by most people in such wise that they first consider the
details of the eventualities they already know, or immediately present.
Then, when these are before them, they infer that the matter is quite
impossible—and whether one or more different eventualities have missed
of consideration, is not studied at all. Our kindly professor of physics once
told us: “To-day I intended to show you the beautiful experiments in the
interference of light—but it can not be observed in daylight and when I
draw the curtains you raise rough-house. The demonstration is therefore
impossible and I take the instruments away.” The good man did not
consider the other eventuality, that we might be depended upon to behave
decently even if the curtains were drawn.
Hence the rule that a witness’s assertion that a thing is impossible must
never be trusted. Take the simplest example. The witness assures us that it is
impossible for a theft to have been committed by some stranger from
outside. If you ask him why, he will probably tell you: “Because the door
was bolted and the windows barred.” The eventuality that the thief might

have entered by way of the chimney, or have sent a child between the bars
of the window, or have made use of some peculiar instrument, etc., are not
considered, and would not be if the question concerning the ground of the
inference had not been put.
We must especially remember that we criminalists “must not dally with
mathematical truth but must seek historical truth. We start with a mass of
details, unite them, and succeed by means of this union and test in attaining
a result which permits us to judge the existence and the characteristics of
past events.” The material of our work lies in the mass of details, and the
manner and reliability of its presentation determines the certainty of our
inferences.
Seen more closely the winning of this material may be described as
Hume describes it:[159] “If we would satisfy ourselves, therefore,
concerning the nature of that evidence which assures us of matters of fact,
we must inquire how we arrive at the knowledge of cause and effect. I shall
venture to affirm as a general proposition which admits of no exception,
that the knowledge of this relation is not, in any instance, attained by
reasonings a priori; but arises entirely from experience, when we find that
any particular objects are constantly conjoined with each other; ... nor can
our reason, unassisted by experience, ever draw any inference concerning
real existence and matter of fact.”
In the course of his explanation Hume presents two propositions,
(1) I have found that such an object has always been attended with such
an effect.
(2) I foresee that other objects which are in appearance similar, will be
attended with similar effects.
He goes on: “I shall allow, if you please, that the one proposition may
justly be inferred from the other; I know in fact that it always is inferred.
But if you insist that the inference is made by a chain of reasoning, I desire
you to produce that chain of reasoning. The connection between these
propositions is not intuitive. There is required a medium which may enable
the mind to draw such an inference, if, indeed, it be drawn by reasoning and
argument. What the medium is, I must confess, passes my comprehension;
and it is incumbent on those to produce it who assert that it exists, and is the
origin of all our conclusions concerning matters of fact.”

If we regard the matter more closely we may say with certainty: This
medium exists not as a substance but as a transition. When I speak in the
proposition of “such an object,” I already have “similar” in mind, inasmuch
as there is nothing absolutely like anything else, and when I say in the first
proposition, “such an object,” I have already passed into the assertion made
in the second proposition.
Suppose that we take these propositions concretely:
(1) I have discovered that bread made of corn has a nourishing effect.
(2) I foresee that other apparently similar objects, e.g., wheat, will have a
like effect.
I could not make various experiments with the same corn in case (1). I
could handle corn taken as such from one point of view, or considered as
such from another, i.e., I could only experiment with very similar objects. I
can therefore make these experiments with corn from progressively remoter
starting points, or soils, and finally with corn from Barbary and East Africa,
so that there can no longer be any question of identity but only of similarity.
And finally I can compare two harvests of corn which have less similarity
than certain species of corn and certain species of wheat. I am therefore
entitled to speak of identical or similar in the first proposition as much as in
the second. One proposition has led into another and the connection
between them has been discovered.
The criminological importance of this “connection” lies in the fact that
the correctness of our inferences depends upon its discovery. We work
continuously with these two Humian propositions, and we always make our
assertion, first, that some things are related as cause and effect, and we join
the present case to that because we consider it similar. If it is really similar,
and the connection of the first and the second proposition are actually
correct, the truth of the inference is attained. We need not count the
unexplained wonders of numerical relations in the result. D’Alembert
asserts: “It seems as if there were some law of nature which more
frequently prevents the occurrence of regular than irregular combinations;
those of the first kind are mathematically, but not physically, more probable.
When we see that high numbers are thrown with some one die, we are
immediately inclined to call that die false.” And John Stuart Mill adds, that
d’Alembert should have set the problem in the form of asking whether he

would believe in the die if, after having examined it and found it right,
somebody announced that ten sixes had been cast with it.
We may go still further and assert that we are generally inclined to
consider an inference wrong which indicates that accidental matters have
occurred in regular numerical relation. Who believes the hunter’s story that
he has shot 100 hares in the past week, or the gambler’s that he has won
1000 dollars; or the sick man’s, that he was sick ten times? It will be
supposed at the very least that each is merely indicating an approximately
round sum. Ninety-six hares, 987 dollars, and eleven illnesses will sound
more probable. And this goes so far that during examinations, witnesses are
shy of naming such “improbable ratios,” if they at all care to have their
testimony believed. Then again, many judges are in no wise slow to jump at
such a number and to demand an “accurate statement,” or even immediately
to decide that the witness is talking only “about.” How deep-rooted such
views are is indicated by the circumstance that bankers and other merchants
of lottery tickets find that tickets with “pretty numbers” are difficult to sell.
A ticket of series 1000, number 100 is altogether unsalable, for such a
number “can not possibly be sold.” Then again, if one has to count up a
column of accidental figures and the sum is 1000, the correctness of the
sum is always doubted.
Here are facts which are indubitable and unexplained. We must therefore
agree neither to distrust so-called round numbers, nor to place particular
reliance on quite irregular figures. Both should be examined.
It may be that the judgment of the correctness of an inference is made
analogously to that of numbers and that the latter exercise an influence on
the judgment which is as much conceded popularly as it is actually
combated. Since Kant, it has been quite discovered that the judgment that
fools are in the majority must lead through many more such truths in
judging—and it is indifferent whether the judgment dealt with is that of the
law court or of a voting legislature or mere judgments as such.
Schiel says, “It has been frequently asserted that a judgment is more
probably correct according to the number of judges and jury.” Quite apart
from the fact that the judge is less careful, makes less effort, and feels less
responsibility when he has associates, this is a false inference from an
enormous average of cases which are necessarily remote from any average
whatever. And when certain prejudices or weaknesses of mind are added,

the mistake multiplies. Whoever accurately follows, if he can avoid getting
bored, the voting of bodies, and considers by themselves individual
opinions about the subject, they having remained individual against large
majorities and hence worthy of being subjected to a cold and unprejudiced
examination, will learn some rare facts. It is especially interesting to study
the judgment of the full bench with regard to a case which has been falsely
judged; surprisingly often only a single individual voice has spoken
correctly. This fact is a warning to the judge in such cases carefully to listen
to the individual opinion and to consider that it is very likely to deserve
study just because it is so significantly in the minority.
The same thing is to be kept in mind when a thing is asserted by a large
number of witnesses. Apart from the fact that they depend upon one
another, that they suggest to one another, it is also easily possible,
especially if any source of error is present, that the latter shall have
influenced all the witnesses.
Whether a judgment has been made by a single judge or is the verdict of
any number of jurymen is quite indifferent since the correctness of a
judgment does not lie in numbers. Exner says, “The degree of probability of
a judgment’s correctness depends upon the richness of the field of the
associations brought to bear in establishing it. The value of knowledge is
judicially constituted in this fact, for it is in essence the expansion of the
scope of association. And the value is proportional to the richness of the
associations between the present fact and the knowledge required.” This is
one of the most important of the doctrines we have to keep in mind, and it
controverts altogether those who suppose that we ought to be satisfied with
the knowledge of some dozens of statutes, a few commentaries, and so and
so many precedents.
If we add that “every judgment is an identification and that in every
judgment we assert that the content represented is identical in spite of two
different associative relationships,”[160] it must become clear what dangers
we undergo if the associative relationships of a judge are too poor and
narrow. As Mittermaier said seventy years ago: “There are enough cases in
which the weight of the evidence is so great that all judges are convinced of
the truth in the same way. But in itself what determines the judgment is the
essential character of him who makes it.” What he means by essential
character has already been indicated.

We have yet to consider the question of the value of inferences made by
a witness from his own combinations of facts, or his descriptions. The
necessity, in such cases, of redoubled and numerous examinations is often
overlooked. Suppose, for example, that the witness does not know a certain
important date, but by combining what he does know, infers it to have been
the second of June, on which day the event under discussion took place. He
makes the inference because at the time he had a call from A, who was in
the habit of coming on Wednesdays, but there could be no Wednesday after
June seventh because the witness had gone on a long journey on that day,
and it could not have been May 26 because this day preceded a holiday and
the shop was open late, a thing not done on the day A called. Nor, moreover,
could the date have been May 20, because it was very warm on the day in
question, and the temperature began to rise only after May 20. In view of
these facts the event under discussion must have occurred upon June 2nd
and only on that day.
As a rule, such combinations are very influential because they appear
cautious, wise and convincing. They impose upon people without
inclination toward such processes. More so than they have a right to,
inasmuch as they present little difficulty to anybody who is accustomed to
them and to whom they occur almost spontaneously. As usually a thing that
makes a great impression upon us is not especially examined, but is
accepted as astounding and indubitable, so here. But how very necessary it
is carefully to examine such things and to consider whether the single
premises are sound, the example in question or any other example will
show. The individual dates, the facts and assumptions may easily be
mistaken, and the smallest oversight may render the result false, or at least
not convincing.
The examination of manuscripts is still more difficult. What is written
has a certain convincing power, not only on others but on the writer, and
much as we may be willing to doubt and to improve what has been written
immediately or at most a short time ago, a manuscript of some age has
always a kind of authority and we give it correctness cheaply when that is
in question. In any event there regularly arises in such a case the problem
whether the written description is quite correct, and as regularly the answer
is a convinced affirmative. It is impossible to give any general rule for
testing such affirmation. Ordinarily some clearness may be attained by
paying attention to the purpose of the manuscript, especially in order to

ascertain its sources and the personality of the writer. There is much in the
external form of the manuscript. Not that especial care and order in the
notes are particularly significant; I once published the accounts of an old
peasant who could neither read nor write, and his accounts with a neighbor
were done in untrained but very clear fashion, and were accepted as
indubitable in a civil case. The purposiveness, order, and continuity of a
manuscript indicate that it was not written after the event; and are therefore,
together with the reason for having written it and obviously with the
personality of the writer, determinative of its value.
Section 32.(j) Mistaken Inferences.

It is true, as Huxley says, that human beings would have made fewer
mistakes if they had kept in mind their tendency to false judgments which
depend upon extraordinary combinations of real experiences. When people
say: I felt, I heard, I saw this or that, in 99 cases put of 100 they mean only
that they have been aware of some kind of sensation the nature of which
they determine in a judgment. Most erroneous inferences ensue in this
fashion. They are rarely formal and rarely arise by virtue of a failure to use
logical principles; their ground is the inner paucity of a premise, which
itself is erroneous because of an erroneous perception or conception.[161] As
Mill rightly points out, a large portion of mankind make mistakes because
of tacit assumptions that the order of nature and the order of knowledge are
identical and that things must exist as they are thought, so that when two
things can not be thought together they are supposed not to exist together,
and the inconceivable is supposed to be identical with the non-existent. But
what they do not succeed in conceiving must not be confused with the
absolutely inconceivable. The difficulty or impossibility of conceiving may
be subjective and conditional, and may prevent us from understanding the
relation of a series of events only because some otherwise proximate
condition is unknown or overlooked. Very often in criminal cases when I
can make no progress in some otherwise simple matter, I recall the well
known story of an old peasant woman who saw the tail of a horse through
an open stable door and the head of another through another door several
yards away, and because the colors of both head and tail were similar, was
moved to cry out: “Dear Lord, what a long horse!” The old lady started with
the presupposition that the rump and the head of the two horses belonged to

one, and could make no use of the obvious solution of the problem of the
inconceivably long horse by breaking it in two.
Such mistakes may be classified under five heads.[162]
(1) Aprioristic mistakes. (Natural prejudices).
(2) Mistakes in observation.
(3) Mistakes in generalization. (When the facts are right and the
inferences wrong).
(4) Mistakes of confusion. (Ambiguity of terms or mistakes by
association).
(5) Logical fallacies.
All five fallacies play important rôles in the lawyer’s work.
We have very frequently to fight natural prejudices. We take certain
classes of people to be better and others to be worse than the average, and
without clearly expressing it we expect that the first class will not easily do
evil nor the other good. We have prejudices about some one or another view
of life; some definition of justice, or point of view, although we have
sufficient opportunity to be convinced of their incorrectness. We have a
similar prejudice in trusting our human knowledge, judgment of
impressions, facts, etc., far too much, so far indeed, that certain relations
and accidents occurring to any person we like or dislike will determine his
advantage or disadvantage at our hands.
Of importance under this heading, too, are those inferences which are
made in spite of the knowledge that the case is different; the power of sense
is more vigorous than that of reflection. As Hartmann expresses it: “The
prejudices arising from sensation, are not conscious judgments of the
understanding but instinctively practical postulates, and are, therefore, very
difficult to destroy, or even set aside by means of conscious consideration.
You may tell yourself a thousand times that the moon at the horizon is as
big as at the zenith—nevertheless you see it smaller at the zenith.” Such
fixed impressions we meet in every criminal trial, and if once we have
considered how the criminal had committed a crime we no longer get free
of the impression, even when we have discovered quite certainly that he had
no share in the deed. The second type of fallacy—mistakes in observation—
will be discussed later under sense perception and similar matters.

Under mistakes of generalization the most important processes are those
of arrangement, where the environment or accompanying circumstances
exercise so determinative an influence that the inference is often made from
them alone and without examination of the object in question. The Tanagra
in the house of an art-connoisseur I take to be genuine without further
examination; the golden watch in the pocket of a tramp to be stolen; a giant
meteor, the skeleton of an iguana, a twisted-looking Nerva in the Royal
Museum of Berlin, I take to be indubitably original, and indubitably
imitations in the college museum of a small town. The same is true of
events: I hear a child screeching in the house of the surly wife of the
shoemaker so I do not doubt that she is spanking it; in the mountains I infer
from certain whistles the presence of chamois, and a single long drawn tone
that might be due to anything I declare to have come from an organ, if a
church is near by.
All such processes are founded upon experience, synthesis, and, if you
like, prejudices. They will often lead to proper conclusions, but in many
cases they will have the opposite effect. It is a frequently recurring fact that
in such cases careful examination is most of all necessary, because people
are so much inclined to depend upon “the first, always indubitably true
impression.” The understanding has generalized simply and hastily, without
seeking for justification.
The only way of avoiding great damage is to extract the fact in itself
from its environment and accompanying circumstance, and to study it
without them. The environment is only a means of proof, but no proof, and
only when the object or event has been validated in itself may we adduce
one means of proof after another and modify our point of view accordingly.
Not to do so, means always to land upon false inferences, and what is
worse, to find it impossible upon the recognition of an error later on, to
discover at what point it has occurred. By that time it has been buried too
deep in the heap of our inferential system to be discoverable.
The error of confusion Mill reduces especially to the unclear
representation of what proof is, i.e., to the ambiguity of words. We rarely
meet such cases, but when we do, they occur after we have compounded
concepts and have united rather carelessly some symbol with an object or
an event which ought not to have been united, simply because we were
mistaken about its importance. A warning example may be found in the
inference which is made from the sentence given a criminal because of

“identical motive.” The Petitio, the Ignorantia, etc., belong to this class. The
purely logical mistakes or mistakes of syllogism do not enter into these
considerations.
Section 33. (k) Statistics of the Moral Situation.

Upon the first glance it might be asserted that statistics and psychology
have nothing to do with each other. If, however, it is observed that the
extraordinary and inexplicable results presented by statistics of morals and
general statistics influence our thought and reflection unconditionally, its
importance for criminal psychology can not be denied. Responsibility,
abundance of criminals, their distribution according to time, place,
personality, and circumstances, the regularity of their appearance, all these
have so profound an influence upon us both essentially and circumstantially
that even our judgments and resolutions, no less than the conduct and
thought of other people whom we judge, are certainly altered by them.[163]
Moreover, probability and statistics are in such close and inseparable
connection that we may not make use of or interpret the one without the
other. Eminent psychological contributions by Münsterberg show the
importance the statistical problems have for psychology. This writer warns
us against the over-valuation of the results of the statistics of morality, and
believes that its proper tendencies will be discovered only much later. In
any event the real value of statistical synthesis and deduction can be
discovered only when it is closely studied. This is particularly true with
regard to criminal conditions. The works of many authors[164] teach us
things that would not otherwise be learned, and they would not be dealt
with here if only a systematic study of the works themselves could be of
use. We speak here only of their importance for our own discipline. Nobody
doubts that there are mysteries in the figures and figuring of statistics. We
admit honestly that we know no more to-day than when Paul de Decker
discussed Quetelet’s labors in statistics of morality in the Brussels Academy
of Science, and confessed what a puzzle it was that human conduct, even in
its smallest manifestations, obeyed in their totality constant and immutable
laws. Concerning this curious fact Adolf Wagner says: “If a traveler had
told us something about some people where a statute determines exactly
how many persons per year shall marry, die, commit suicide, and crimes
within certain classes,—and if he had announced furthermore that these

laws were altogether obeyed, what should we have said? And as a matter of
fact the laws are obeyed all the world over.”[165]
Of course the statistics of morality deal with quantities not qualities, but
in the course of statistical examination the latter are met with. So, e.g.,
examinations into the relation of crime to school-attendance and education,
into the classes that show most suicides, etc., connect human qualities with
statistical data. The time is certainly not far off when we shall seek for the
proper view of the probability of a certain assumption with regard to some
rare crime, doubtful suicide, extraordinary psychic phenomena, etc., with
the help of a statistical table. This possibility is made clearer when the
inconceivable constancy of some figures is considered. Suppose we study
the number of suicides since 1819 in Austria, in periods of eight years. We
find the following figures, 3000, 5000, 6000, 7000, 9000, 12000, 15000—
i.e., a regular increase which is comparable to law.[166] Or suppose we
consider the number of women, who, in the course of ten continuous years
in France, shot themselves; we find 6, 6, 7, 7, 6, 6, 7; there is merely an
alternation between 6 and 7. Should not we look up if in some one year
eight or nine appeared? Should not we give some consideration to the
possibility that the suicide is only a pretended one? Or suppose we consider
the number of men who have drowned themselves within the same time:
280, 285, 292, 276, 257, 269, 258, 276, 278, 287,—Wagner says rightly of
such figures “that they contain the arithmetical relation of the mechanism
belonging to a moral order which ought to call out even greater
astonishment than the mechanism of stellar systems.”
Still more remarkable are the figures when they are so brought together
that they may be seen as a curve. It is in this way that Drobisch brings
together a table which distributes crime according to age. Out of a thousand
crimes committed by persons between the ages of:
AGAINST AGAINST
PROPERTY PERSONS
Less than 16 years 2 0.53
16-21 105 28
21-25 114 50
25-30 101 48
30-35 93 41
35-40 78 31
40-45 63 25
45-50 48 19

50-55 34 15
55-60 24 12
60-65 19 11
65-70 14 8
70-80 8 5
More than 80 2 2

Through both columns a definite curve may be drawn which grows
steadily and drops steadily. Greater mathematical certainty is almost
unthinkable. Of similar great importance is the parallelization of the most
important conditions. When, e.g., suicides in France, from 1826 to 1870 are
taken in series of five years we find the figures 1739, 2263, 2574, 2951,
3446, 3639, 4002, 4661, 5147; if now during that period the population has
increased from 30 to only 36 millions other determining factors have to be
sought.[167]
Again, most authorities as quoted by Gutberlet,[168] indicate that most
suicides are committed in June, fewest in December; most at night,
especially at dawn, fewest at noon, especially between twelve and two
o’clock. The greatest frequency is among the half-educated, the age
between sixty and seventy, and the nationality Saxon (Oettingen).
The combination of such observations leads to the indubitable
conclusion that the results are sufficiently constant to permit making at least
an assumption with regard to the cases in hand. At present, statistics say
little of benefit with regard to the individual; J. S. Mill is right in holding
that the death-rate will help insurance companies but will tell any individual
little concerning the duration of his life. According to Adolf Wagner, the
principal statistical rule is: The law has validity when dealing with great
numbers; the constant regularity is perceivable only when cases are very
numerous; single cases show many a variation and exception. Quetelet has
shown the truth of this in his example of the circle. “If you draw a circle on
the blackboard with thick chalk, and study its outline closely in small
sections, you will find the coarsest irregularities; but if you step far back
and study the circle as a whole, its regular, perfect form becomes quite
distinct.” But the circle must be drawn carefully and correctly, and one must
not give way to sentimentality and tears when running over a fly’s legs in
drawing. Emil du Bois-Reymond[169] says against this: “When the
postmaster announces that out of 100,000 letters a year, exactly so and so
many come unaddressed, we think nothing of the matter—but when

Quetelet counts so and so many criminals to every 100,000 people our
moral sense is aroused since it is painful to think that we are not criminals
simply because somebody else has drawn the black spot.” But really there is
as little regrettable in this fact as in the observation that every year so and
so many men break their legs, and so and so many die—in those cases also,
a large number of people have the good fortune not to have broken their
legs nor to have died. We have here the irrefutable logic of facts which
reveals nothing vexatious.
On the other hand, there is no doubt that our criminal statistics, to be
useful, must be handled in a rather different fashion. We saw, in studying
the statistics of suicide, that inferences with regard to individual cases could
be drawn only when the material had been studied carefully and examined
on all sides. But our criminological statistic is rarely examined with such
thoroughness; the tenor of such examination is far too bureaucratic and
determined by the statutes and the process of law. The criminalist gives the
statistician the figures but the latter can derive no significant principles
from them. Consider for once any official report on the annual results in the
criminal courts in any country. Under and over the thousands and thousands
of figures and rows of figures there is a great mass of very difficult work
which has been profitable only in a very small degree. I have before me the
four reports of a single year which deal with the activities of the Austrian
courts and criminal institutions, and which are excellent in their
completeness, correctness, and thorough revision. Open the most important,
—the results of the administration of criminal law in the various
departments of the country,—and you find everything recorded:—how
many were punished here and how many there, what their crimes were, the
percentage of condemned according to age, social standing, religion,
occupation, wealth, etc.; then again you see endless tables of arrests,
sentences, etc., etc. Now the value of all this is to indicate merely whether a
certain regularity is discoverable in the procedure of the officials. Material
psychologically valuable is rare. There is some energetic approximation to
it in the consideration of culture, wealth, and previous sentences, but even
these are dealt with most generally, while the basis and motive of the death-
sentence is barely indicated. We can perceive little consideration of motives
with regard to education, earlier life, etc., in their relation to sentencing.
Only when statistics will be made to deal actually and in every direction

with qualities and not merely with quantities will they begin to have a really
scientific value.
Topic II. KNOWLEDGE.
Section 34.

Criminal law, like all other disciplines, must ask under what conditions
and when we are entitled to say “we know.” The answer is far from being
perennially identical, though it might have been expected that the
conviction of knowledge would be ever united with identical conditions.
The strange and significant difference is determined by the question
whether the verdict, “we know,” will or will not have practical
consequences. When we discuss some question like the place of a certain
battle, the temperature of the moon, or the appearance of a certain animal in
the Pliocene, we first assume that there is a true answer; reasons for and
against will appear, the former increase in number, and suddenly we
discover in some book the assurance that, “We know the fact.” That
assurance passes into so and so many other books; and if it is untrue, no
essential harm can be done.
But when science is trying to determine the quality of some substance,
the therapeutic efficiency of some poison, the possibilities of some medium
of communication, the applicability of some great national economic
principle like free trade, then it takes much more time to announce, “We
know that this is so and not otherwise.” In this case one sees clearly that
tremendous consequences follow on the practical interpretation of “we
know,” and therefore there is in these cases quite a different taxation of
knowledge from that in cases where the practical consequences are
comparatively negligible.
Our work is obviously one of concrete practical consequences. It
contains, moreover, conditions that make imperfect knowledge equivalent
to complete ignorance, for in delivering sentence every “no” may each time
mean, “We know that he has not done it” or again, “We know that it is not
altogether certain that he has done it.” Our knowledge in such cases is
limited to the recognition of the confusion of the subject, and knowledge in
its widest sense is the consciousness of some definite content; in this case,
confusion. Here, as everywhere, knowledge is not identical with truth;
knowledge is only subjective truth. Whoever knows, has reasons for

considering things true and none against so considering them. Here, he is
entitled to assume that all who recognize his knowledge will justify it. But,
when even everybody justifies his knowledge, it can be justified only in its
immediacy; to-morrow the whole affair may look different. For this reason
we criminalists assert much less than other investigators that we seek the
truth; if we presume to such an assertion, we should not have the
institutions of equity, revision, and, in criminal procedure, retrial. Our
knowledge, when named modestly, is only the innermost conviction that
some matter is so and so according to human capacity, and “such and such a
condition of things.” Parenthetically, we agree that “such and such a
condition of things” may alter with every instant and we declare ourselves
ready to study the matter anew if the conditions change. We demand
material, but relative truth.
One of the acutest thinkers, J. R. von Mayer, the discoverer of the
working principle of “conservation of energy,” says, “the most important, if
not the only rule for real natural science is this: Always to believe that it is
our task to know the phenomena before we seek explanation of higher
causes. If a fact is once known in all its aspects, it is thereby explained and
the duty of science fulfilled.” The author did not have us dry-souled lawyers
in mind when he made this assertion, but we who modestly seek to
subordinate our discipline to that of the correct one of natural science, must
take this doctrine absolutely to heart. Every crime we study is a fact, and
once we know it in all its aspects and have accounted for every little detail,
we have explained it and have done our duty.
But the word explain does not lead us very far. It is mainly a matter of
reducing the mass of the inexplicable to a minimum and the whole to its
simplest terms. If only we succeed in this reduction! In most cases we
substitute for one well-known term, not another still better one, but a
strange one which may mean different things to different people. So again,
we explain one event by means of another more difficult one. It is
unfortunate that we lawyers are more than all others inclined to make
unnecessary explanations, because our criminal law has accustomed us to
silly definitions which rarely bring us closer to the issue and which supply
us only with a lot of words difficult to understand instead of easily
comprehensible ones. Hence we reach explanations both impossible and
hard to make, explanations which we ourselves are often unwilling to
believe. And again we try to explain and to define events which otherwise

would have been understood by everybody and which become doubtful and
uncertain because of the attempt. The matter becomes especially difficult
when we feel ourselves unsure, or when we have discovered or expect
contradiction. Then we try to convince ourselves that we know something,
although at the beginning we were clearly enough aware that we knew
nothing. We must not forget that our knowledge can attain only to ideas of
things. It consists alone in the perception of the relation and agreement, or
in the incompatibility and contradiction of some of our ideas. Our task lies
exactly in the explication of these impressions, and the more thoroughly
that is done the greater and more certain is the result. But we must never
trust our own impressions merely. “When the theologian, who deals with
the supersensible, has said all that, from his point of view, he can say, when
the jurist, who represents those fundamental laws which are the result of
social experience, has considered all reasons from his own point of view,
the final authority in certain cases must be the physician who is engaged in
studying the life of the body.”
I get this from Maudsley,[170] and it leads us to keep in mind that our
knowledge is very one-sided and limited, and that an event is known only
when all have spoken who possess especial knowledge of its type. Hence,
every criminalist is required to found his knowledge upon that of the largest
possible number of experts and not to judge or discuss any matter which
requires especial information without having first consulted an expert with
regard to it. Only the sham knows everything; the trained man understands
how little the mind of any individual may grasp, and how many must
coöperate in order to explain the very simplest things.
The complexity of the matter lies in the essence of the concept “to be.”
We use the word “to be” to indicate the intent of all perceived and
perceivable. “ ‘To be’ and ‘to know’ are identical in so far as they have
identical content, and the content may be known?”[171]

Part II.

OBJECTIVE CONDITIONS OF CRIMINAL
INVESTIGATION: THE MENTAL ACTIVITY OF THE
EXAMINEE.
Title A. General Conditions.
Topic I. OF SENSE-PERCEPTION.
Section 35.

Our conclusions depend upon perceptions made by ourselves and others.
And if the perceptions are good our judgments may be good, if they are bad
our judgments must be bad. Hence, to study the forms of sense-perception
is to study the fundamental conditions of the administration of law, and the
greater the attention thereto, the more certain is the administration.
It is not our intention to develop a theory of perception. We have only to
extract those conditions which concern important circumstances,
criminologically considered, and from which we may see how we and those
we examine, perceive matters. A thorough and comprehensive study of this
question can not be too much recommended. Recent science has made
much progress in this direction, and has discovered much of great
importance for us. To ignore this is to confine oneself merely to the
superficial and external, and hence to the inconceivable and
incomprehensible, to ignoring valuable material for superficial reasons, and
what is worse, to identifying material as important which properly
understood has no value whatever.
Section 36. (a) General Considerations.

The criminalist studies the physiological psychology[172] of the senses
and their functions, in order to ascertain their nature, their influence upon
images and concepts, their trustworthiness, their reliability and its
conditions, and the relation of perception to the object. The question applies
equally to the judge, the jury, the witness, and the accused. Once the

essence of the function and relation of sense-perception is understood, its
application in individual cases becomes easy.
The importance of sense-perception need not be demonstrated. “If we
ask,” says Mittermaier, “for the reason of our conviction of the truth of facts
even in very important matters, and the basis of every judgment concerning
existence of facts, we find that the evidence of the senses is final and seems,
therefore, the only true source of certainty.”
There has always, of course, been a quarrel as to the objectivity and
reliability of sense-perception. That the senses do not lie, “not because they
are always correct, but because they do not judge,” is a frequently quoted
sentence of Kant’s; the Cyrenaics have already suggested this in asserting
that pleasure and pain alone are indubitable. Aristotle narrows the veracity
of sensation to its essential content, as does Epicurus. Descartes, Locke and
Leibnitz have suggested that no image may be called, as mere change of
feeling, true or false. Sensationalism in the work of Gassendi, Condillac,
and Helvetius undertook for this reason the defense of the senses against the
reproach of deceit, and as a rule did it by invoking the infallibility of the
sense of touch against the reproach of the contradictions in the other senses.
Reid went back to Aristotle in distinguishing specific objects for each sense
and in assuming the truth of each sense within its own field.
That these various theories can be adjusted is doubtful, even if, from a
more conservative point of view, the subject may be treated quantitatively.
The modern quantification of psychology was begun by Herbart, who
developed a mathematical system of psychology by introducing certain
completely unempirical postulates concerning the nature of representation
and by applying certain simple premises in all deductions concerning
numerical extent. Then came Fechner, who assumed the summation of
stimuli. And finally these views were determined and fixed by the much-
discussed Weber’s Law, according to which the intensity of the stimulus
must increase in the proportion that the intensity of the sensation is to
increase; i.e., if a stimulus of 20 units requires the addition of 3 before it
can be perceived, a stimulus of 60 units would require the addition of 9.
This law, which is of immense importance to criminalists who are
discussing the sense-perceptions of witnesses, has been thoroughly and
conclusively dealt with by A. Meinong.[173]

“Modern psychology takes qualities perceived externally to be in
themselves subjective but capable of receiving objectivity through our
relation to the outer world.... The qualitative character of our sensory
content produced by external stimuli depends primarily on the organization
of our senses. This is the fundamental law of perception, of modern
psychology, variously expressed, but axiomatic in all physiological
psychology.”[174] In this direction Helmholtz[175] has done pioneer work.
He treats particularly the problem of optics, and physiological optics is the
study of perception by means of the sense of sight. We see things in the
external world through the medium of light which they direct upon our
eyes. The light strikes the retina, and causes a sensation. The sensation
brought to the brain by means of the optic nerve becomes the condition of
the representation in consciousness of certain objects distributed in space....
We make use of the sensation which the light stimulates in the mechanism
of the optic nerve to construct representations concerning the existence,
form, and condition of external objects. Hence we call images perceptions
of sight. (Our sense-perception, according to this theory, consists, therefore,
entirely of sensations; the latter constitute the stuff or the content from
which the other is constructed). Our sensations are effects caused in our
organs, externally, and the manifestation of such an effect depends
essentially upon the nature of the apparatus which has been stimulated.
There are certain really known inferences, e.g., those made by the
astronomer from the perspective pictures of the stars to their positions in
space. These inferences are founded upon well-studied knowledge of the
principles of optics. Such knowledge of optics is lacking in the ordinary
function of seeing; nevertheless it is permissible to conceive the psychical
function of ordinary perception as unconscious inferences, inasmuch as this
name will completely distinguish them from the commonly so-called
conscious inferences.
The last-named condition is of especial importance to us. We need
investigation to determine the laws of the influence of optical and acoustical
knowledge upon perception. That these laws are influential may be verified
easily. Whoever is ignorant, e.g., that a noise is reflected back considerably,
will say that a wagon is turning from the side from which the noise comes,
though if he knows the law, if he knows that fact, his answer would be
reversed. So, as every child knows that the reflection of sound is frequently
deceptive, everybody who is asked in court will say that he believes the

wagon to be on the right side though it might as well have been on the left.
Again, if we were unaware that light is otherwise refracted in water than in
air we could say that a stick in the water has been bent obtusely, but
inasmuch as everybody knows this fact of the relation of light to water, he
will declare that the stick appears bent but really is straight.
From these simplest of sense-perceptions to the most complicated,
known only to half a dozen foremost physicists, there is an infinite series of
laws controlling each stage of perception, and for each stage there is a
group of men who know just so much and no more. We have, therefore, to
assume that their perceptions will vary with the number and manner of their
accomplishments, and we may almost convince ourselves that each
examinee who has to give evidence concerning his sense-perception should
literally undergo examination to make clear his scholarly status and thereby
the value of his testimony. Of course, in practice this is not required. First of
all we judge approximately a man’s nature and nurture and according to the
impression he makes upon us, thence, his intellectual status. This causes
great mistakes. But, on the other hand, the testimony is concerned almost
always with one or several physical events, so that a simple relational
interrogation will establish certainly whether the witness knows and attends
to the physical law in question or not. But anyway, too little is done to
determine the means a man uses to reach a certain perception. If
instantaneous contradictions appear, there is little damage, for in the
absence of anything certain, further inferences are fortunately made in rare
cases only. But when the observation is that of one person alone, or even
when more testify but have accidentally the same amount of knowledge and
hence have made the same mistake, and no contradiction appears, we
suppose ourselves to possess the precise truth, confirmed by several
witnesses, and we argue merrily on the basis of it. In the meantime we quite
forget that contradictions are our salvation from the trusting acceptance of
untruth—and that the absence of contradiction means, as a rule, the absence
of a starting point for further examination.
For this reason and others modern psychology requires us to be cautious.
Among the others is the circumstance that perceptions are rarely pure. Their
purity consists in containing nothing else than perception; they are mixed
when they are connected with imaginations, judgments, efforts, and
volitions. How rarely a perception is pure I have already tried to show;
judgments almost always accompany it. I repeat too, that owing to this

circumstance and our ignorance of it, countless testimonies are interpreted
altogether falsely. This is true in many other fields. When, for example, A.
Fick says: “The condition we call sensation occurs in the consciousness of
the subject when his sensory nerves are stimulated,” he does not mean that
the nervous stimulus in itself is capable of causing the condition in
question. This one stimulus is only a single tone in the murmur of countless
stimuli, which earlier and at the same time have influenced us and are
different in their effect on each man. Therefore, that single additional tone
will also be different in each man. Or, when Bernstein says that “Sensation,
i.e., the stimulation of the sensorium and the passage of this stimulation to
the brain, does not in itself imply the perception of an object or an event in
the external world,” we gather that the objectivity of the perception works
correctively not more than one time out of many. So here again everything
depends upon the nature and nurture of the subject.
Sensations are, according to Aubert, still more subjective. “They are the
specific activity of the sense organs, (not, therefore, passive as according to
Helmholtz, but active functions of the sense organs). Perception arises when
we combine our particular sensations with the pure images of the spirit or
the schemata of the understanding, especially with the pure image of space.
The so-called ejection or externalization of sensations occurs only as their
scheme and relation to the unity of their object.”
So long as anything is conceived as passive it may always recur more
identically than when it is conceived as active. In the latter case the
individuality of the particular person makes the perception in a still greater
degree individual, and makes it almost the creature of him who perceives.
Whether Aubert is right or not is not our task to discover, but if he is right
then sense-perception is as various as is humanity. The variety is still
further increased by means of the comprehensive activity which Fischer[176]
presupposes. “Visual perception has a comprehensive or compounding
activity. We never see any absolute simple and hence do not perceive the
elements of things. We see merely a spatial continuum, and that is possible
only through comprehensive activity—especially in the case of movement
in which the object of movement and the environment must both be
perceived.” But each individual method of “comprehension” is different.
And it is uncertain whether this is purely physical, whether only the
memory assists (so that the attention is biased by what has been last
perceived), whether imagination is at work or an especial psychical activity

must be presupposed in compounding the larger elements. The fact is that
men may perceive an enormous variety of things with a single glance. And
generally the perceptive power will vary with the skill of the individual.
The narrowest, smallest, most particularizing glance is that of the most
foolish; and the broadest, most comprehensive, and comparing glance, that
of the most wise. This is particularly noticeable when the time of
observation is short. The one has perceived little and generally the least
important; the other has in the same time seen everything from top to
bottom and has distinguished between the important and the unimportant,
has observed the former rather longer than the latter, and is able to give a
better description of what he has seen. And then, when two so different
descriptions come before us, we wonder at them and say that one of them is
untrue.[177]
The speed of apperception has been subjected to measurement by
Auerbach, Kries, Baxt, von Tigerstedt and Bergqvist, Stern, Vaschide,
Vurpass, etc. The results show 0.015 to 0.035 seconds for compounded
images. Unfortunately, most of these experiments have brought little
unanimity in the results and have not compared, e.g., the apperception-
times of very clever people with those of very slow and stupid ones. In the
variety of perception lies the power of presentation (in our sense of the
term). In the main other forces assist in this, but when we consider how the
senses work in combination we must conclude that they determine their
own forms. “If we are to say that sense experience instructs us concerning
the manifoldness of objects we may do so correctly if we add the scholium
that many things could not be mentioned without synthesis.” So Dörner
writes. But if we approach the matter from another side, we see how
remarkable it is that human perceptions can be compared at all. Hermann
Schwarz says “According to the opinion of the physicists we know external
events directly by means of the organs, the nerves of which serve passively
to support consciousness in the perception of such events. On the contrary,
according to the opinion of most physiologists, the nerve fibers are active in
the apprehension of external events, they modify it, alter it until it is well
nigh unrecognizable, and turn it over to consciousness only after the
original process has undergone still another transformation into new forms
of mechanical energy in the ganglion cells of the outer brain. This is the
difference between the physical theory of perception and the physiological.”

In this connection there are several more conditions pertaining to general
sense-perception. First of all there is that so-called vicariousness of the
senses which substitutes one sense for another, in representation. The actual
substitution of one sense by another as that of touch and sight, does not
belong to the present discussion. The substitution of sound and sight is only
apparent. E. g., when I have several times heard the half-noticed voice of
some person without seeing him, I will imagine a definite face and
appearance which are pure imagination. So again, if I hear cries for help
near some stream, I see more or less clearly the form of a drowning person,
etc. It is quite different in touching and seeing; if I touch a ball, a die, a cat,
a cloth, etc., with my eyes closed, then I may so clearly see the color of the
object before me that I might be really seeing it. But in this case there is a
real substitution of greater or lesser degree.
The same vicariousness occurs when perception is attributed to one
sense while it properly belongs to another. This happens particularly at such
times when one has not been present during the event or when the
perception was made while only half awake, or a long time ago, and finally,
when a group of other impressions have accompanied the event, so that
there was not time enough, if I may say so, properly to register the sense
impression. So, e.g., some person, especially a close friend, may have been
merely heard and later quite convincingly supposed to have been seen.
Sensitive people, who generally have an acuter olfactory sense than others,
attach to any perceived odor all the other appropriate phenomena. The
vicariousnesses of visual sensations are the most numerous and the most
important. Anybody who has been pushed or beaten, and has felt the blows,
will, if other circumstances permit and the impulse is strong enough, be
convinced that he has seen his assaulter and the manner of the assault.
Sometimes people who are shot at will claim to have seen the flight of the
ball. And so again they will have seen in a dark night a comparatively
distant wagon, although they have only heard the noise it made and felt the
vibration. It is fortunate that, as a rule, such people try to be just in
answering to questions which concern this substitution of one sense-
perception for another. And such questions ought to be urgently put. That a
false testimony can cause significant errors is as obvious as the fact that
such substitutions are most frequent with nervous and imaginative persons.
Still more significant is that characteristic phenomenon, to us of
considerable importance, which might be called retrospective illumination

of perception. It consists in the appearance of a sense-perception under
conditions of some noticeable interruption, when the stimulus does not, as a
rule, give rise to that perception. I cite a simple example in which I first
observed this fact. Since I was a child there had been in my bed-room a
clock, the loud ticking of which habit of many years prevented my hearing.
Once, as I lay awake in bed, I heard it tick suddenly three times, then fall
silent and stop. The occurrence interested me, I quickly got a light and
examined the clock closely. The pendulum still swung, but without a sound;
the time was right. I inferred that the clock must have stopped going just a
few minutes before. And I soon found out why: the clock is not encased and
the weight of the pendulum hangs free. Now under the clock there always
stood a chair which this time had been so placed as to be inclined further
backward. The weight followed that inclination and so the silence came
about.
I immediately made an experiment. I set the clock going again, and
again held the weight back. The last beats of the pendulum were neither
quicker nor slower, nor louder or softer than any others, before the sudden
stoppage of the clock. I believe the explanation to be as follows: As
customary noises especially are unheard, I did not hear the pendulum of the
clock. But its sudden stopping disturbed the balance of sound which had
been dominating the room. This called attention to the cause of the
disturbance, i.e., the ticking which had ceased, and hence perception was
intensified backwards and I heard the last ticks, which I had not perceived
before, one after another. The latent stimulus caused by the ticking worked
backward. My attention was naturally awakened only after the last tick, but
my perception was consecutive.
I soon heard of another case, this time, in court. There was a shooting in
some house and an old peasant woman, who was busy sewing in the room,
asserted that she had just before the shooting heard a few steps in the
direction from which the shot must have come. Nobody would agree that
there was any reason for supposing that the person in question should have
made his final steps more noisily than his preceding ones. But I am
convinced that the witness told the truth. The steps of the new arrival were
perceived subconsciously; the further disturbance of the perception
hindered her occupation and finally, when she was frightened by the shot,
the upper levels of consciousness were illuminated and the noises which

had already reached the subconsciousness passed over the threshold and
were consciously perceived.
I learned from an especially significant case, how the same thing could
happen with regard to vision. A child was run over and killed by a careless
coachman. A pensioned officer saw this through the window. His
description was quite characteristic. It was the anniversary of a certain
battle. The old gentleman, who stood by the window thinking about it and
about his long dead comrades, was looking blankly out into the street. The
horrible cry of the unhappy child woke him up and he really began to see.
Then he observed that he had in truth seen everything that had happened
before the child was knocked over—i.e., for some reason the coachman had
turned around, turning the horses in such a way at the same time that the
latter jumped sidewise upon the frightened child, and hence the accident.
The general expressed himself correctly in this fashion: “I saw it all, but I
did not perceive and know that I saw it until after the scream of the child.”
He offered also in proof of the correctness of his testimony, that he, an old
cavalry officer, would have had to see the approaching misfortune if he had
consciously seen the moving of the coachman, and then he would have had
to be frightened. But he knew definitely that he was frightened only when
the child cried out—he could not, therefore, have consciously perceived the
preceding event. His story was confirmed by other witnesses.
This psychological process is of significance in criminal trials, inasmuch
as many actionable cases depend upon sudden and unexpected events,
where retrospective illumination may frequently come in. In such cases it is
most important to determine what actually has been perceived, and it is
never indifferent whether we take the testimony in question as true or not.
With regard to the senses of criminals, Lombroso and Ottolenghi have
asserted that they are duller than those of ordinary people. The assertion is
based on a collection made by Lombroso of instances of the great
indifference of criminals to pain. But he has overlooked the fact that the
reason is quite another thing. Barbarous living and barbarous morals are
especially dulling, so that indifference to pain is a characteristic of all
barbarous nations and characters. Inasmuch as there are many criminals
among barbarous people, barbarity, criminality and indifference to pain
come together in a large number of cases. But there is nothing remarkable
in this, and a direct relation between crime and dullness of the senses can
not be demonstrated.

(b) The Sense of Sight.
Section 37. (1) General Considerations.

Just as the sense of sight is the most dignified of all our senses, it is also
the most important in the criminal court, for most witnesses testify as to
what they have seen. If we compare sight with the hearing, which is next in
the order of importance, we discover the well-known fact that what is seen
is much more certain and trustworthy than what is heard. “It is better to see
once than to hear ten times,” says the universally-valid old maxim. No
exposition, no description, no complication which the data of other senses
offer, can present half as much as even a fleeting glance. Hence too, no
sense can offer us such surprises as the sense of sight. If I imagine the
thunder of Niagara, the voice of Lucca, the explosion of a thousand
cartridges, etc., or anything else that I have not heard, my imagination is
certainly incorrect, but it will differ from reality only in degree. It is quite
different with visual imagination. We need not adduce examples of
magnificence like the appearance of the pyramids, a tropical light; of a
famous work of art, a storm at sea, etc. The most insignificant thing ever
seen but variously pictured in imagination will be greeted at first sight with
the words: “But I imagined it quite different!” Hence the tremendous
importance of every local and material characteristic which the criminal
court deals with. Every one of us knows how differently he has, as a rule,
imagined the place of the crime to be; how difficult it is to arrive at an
understanding with the witness concerning some unseen, local
characteristic, and how many mistakes false images of the unseen have
caused. Whenever I ciceroned anybody through the Graz Criminal
Museum, I was continually assailed with “Does this or that look so? But I
thought it looked quite different!” And the things which evoke these
exclamations are such as the astonished visitors have spoken and written
about hundreds of times and often passed judgments upon. The same
situation occurs when witnesses narrate some observation. When the
question involves the sense of hearing some misunderstanding may be
popularly assumed. But the people know little of optical illusions and false
visual perceptions, though they are aware that incorrect auditions are
frequent matters of fact. Moreover, to the heard object a large number of
more or less certain precautionary judgments are attached. If anybody, e.g.,
has heard a shot, stealthy footsteps, crackling flames, we take his
experience always to be approximate. We do not do so when he assures us

he has seen these things or their causes. Then we take them—barring
certain mistakes in observation,—to be indubitable perceptions in which
misunderstanding is impossible.
In this, again, is the basis for the distrust with which we meet testimony
concerning hearsay. For we feel uncertain in the mere absence of the person
whose conversation is reported, since his value can not be determined. But
a part of the mistrust lies in the fact that it is not vision but the perennially
half-doubted hearing that is in issue. Lies are assigned mainly to words; but
there are lies which are visual (deceptions, maskings, illusions, etc.). Visual
lies are, however, a diminishing minority in comparison with the lies that
are heard.
The certainty of the correctness of vision lies in its being tested with the
sense of touch,—i.e. in the adaptation of our bodily sense to otherwise
existing things. As Helmholtz says, “The agreement between our visual
perceptions and the external world, rests, at least in the most important
matters, on the same ground that all our knowledge of the actual world rests
on, upon the experience and the lasting test of their correctness by means of
experiments, i.e., of the movements of our bodies.” This would almost
make it seem that the supreme judge among the senses is the touch. But that
is not intended; we know well enough to what illusions we are subject if we
trust the sense of touch alone. At the same time we must suppose that the
question here is one of the nature of the body, and this can be measured
only by something similar, i.e., by our own physical characteristics, but
always under the control of some other sense, especially the sense of sight.
The visual process itself consists, according to Fischer, “of a
compounded series of results which succeed each other with extraordinary
rapidity and are causally related. In this series the following elements may
principally be distinguished.
(1) The physico-chemical process.
(2) The physiologico-sensory.
(3) The psychological.
(4) The physiologico-motor.
(5) The process of perception.”
It is not our task to examine the first four elements. In order clearly to
understand the variety of perception, we have to deal with the last only. I
once tried to explain this by means of the phenomenon of instantaneous

photographs (cinematographs). If we examine one such representing an
instant in some quick movement, we will assert that we never could have
perceived it in the movement itself. This indicates that our vision is slower
than that of the photographic apparatus, and hence, that we do not
apprehend the smallest particular conditions, but that we each time
unconsciously compound a group of the smallest conditions and construct
in that way the so-called instantaneous impressions. If we are to compound
a great series of instantaneous impressions in one galloping step, we must
have condensed and compounded a number of them in order to get the
image that we see with our eyes as instantaneous. We may therefore say that
the least instantaneous image we ever see with our eyes contains many parts
which only the photographic apparatus can grasp. Suppose we call these
particular instances a, b, c, d, e, f, g, h, i, j, k, l, m; it is self-evident that the
manner of their composition must vary with each individual. One man may
compound his elements in groups of three: a, b, c,—d, e, f,—g, h, i, etc.;
another may proceed in dyads: a, b,—c, d,—e, f,—g, h,—etc.; a third may
have seen an unobservable instant later, but constructs his image like the
first man: b, c, d,—l, m, n, etc.; a fourth works slowly and rather
inaccurately, getting: a, c, d,—f, h, i,—etc. Such variations multiply, and
when various observers of the same event describe it they do it according to
their different characteristics. And the differences may be tremendous.
Substitute numerals for letters and the thing becomes clear. The relative
slowness of our apprehension of visual elements has the other consequence
that we interpolate objects in the lacunæ of vision according to our
expectations. The best example of this sort of thing would be the perception
of assault and battery. When ten people in an inn see how A raises a beer
glass against B’s head, five expect: “Now he’ll pound him,” and five others:
“Now he’ll throw it.” If the glass has reached B’s head none of the ten
observers have seen how it reached there, but the first five take their oath
that A pounded B with the glass, and the other five that he threw it at B’s
head. And all ten have really seen it, so firmly are they convinced of the
correctness of their swift judgment of expectation. Now, before we treat the
witness to some reproach like untruth, inattention, silliness, or something
equally nice, we had better consider whether his story is not true, and
whether the difficulty might not really lie in the imperfection of our own
sensory processes. This involves partly what Liebmann has called
“anthropocentric vision,” i.e., seeing with man as the center of things.

Liebmann further asserts, “that we see things only in perspective sizes, i.e.,
only from an angle of vision varying with their approach, withdrawal and
change of position, but in no sense as definite cubical, linear, or surface
sizes. The apparent size of an object we call an angle of vision at a certain
distance. But, what indeed is the different, true size? We know only
relations of magnitude.” This description is important when we are dealing
with testimony concerning size. It seems obvious that each witness who
speaks of size is to be asked whence he had observed it, but at the same
time a great many unexpected errors occur, especially when what is
involved is the determination of the size of an object in the same plane. One
need only to recall the meeting of railway tracks, streets, alleys, etc., and to
remember how different in size, according to the point of view of the
witness, various objects in such places must appear. Everybody knows that
distant things seem smaller than near ones, but almost nobody knows what
the difference amounts to. For examples see Lotze, “Medical Psychology,”
Leipzig, 1852.
In addition we often think that the clearness of an object represents its
distance and suppose that the first alone determines the latter. But the
distinctness of objects, i.e., the perceptibility of a light-impression, depends
also upon the absolute brightness and the differences in brightness. The
latter is more important than is supposed. Try to determine how far away
you can see a key-hole when the wall containing the door is in the shadow,
and when there is a window opposite the key-hole. A dark object of the size
of a key-hole will not be visible at one hundredth of the distance at which
the key-hole is perceived. Moreover, the difference in intensity is not alone
in consideration; the intensity of the object with regard to its background
has yet to be considered. Aubert has shown that the accuracy of the
distinction is the same when a square of white paper is looked at from an
angle of 18´´, and when conversely a square of black paper on white
background is looked at from an angle of 35´´. “When we put a gray paper
in the sunshine, it may become objectively brighter than white paper in
shadow. But this does not prevent us from knowing one as gray and the
other as pure white. We separate the color of the object from the intensity of
the incident light.” But this is not always so simple, inasmuch as we know
in the case in hand which paper is gray and which white, which is in the
sunlight and which in the shadow. But if these facts are not known mistakes
often occur so that a man dressed in dark clothes but in full light will be